Revisiting CASL: Why It’s Still Important

It’s been over a year since many of the Canadian Anti-Spam Legislation (CASL) provisions regarding the sending of Commercial Electronic Messages (CEMs) went into effect. The provisions of CASL surrounding the sending of CEMs aim to combat spam and create an opt-in environment in Canada. CEMs sent to an electronic address are covered by CASL and electronic addresses can be an email address, phone number, social media or instant messaging account. As you may have noticed, even a phone number is considered an electronic address under CASL and, therefore, applies to text messages as well as emails.

In most cases, organizations must have implied consent or express written consent to send a CEM to electronic address. Implied consent will allow organizations to send CEM’s for 6 months to inquiries and 24 months to current customers and customers who have made a purchase from you organization. Express written consent is valid indefinitely absent a subsequent unsubscribe request. These timeframes and unsubscribe requests must be properly managed to ensure CEMs are not sent after the timeframe expires or to a previous unsubscribe address. Our previous blog on the topic covers how to comply with these two consent requirements in more detail.

Compliance with CASL is imperative as violations can result in:

• $10 million penalty per violation for organizations;
• $1 million penalty per violation for individuals (Updated; and
• Public relations damage.

CASL also offers a private right of action, however, this is not obtainable until 2017.

Unless they have $10 million to spare, it’s vital for organizations to remain aware of who they are sending CEMs to in order to ensure compliance with the requirements set out by CASL. Many organizations may not even be aware that CEMs are being sent to electronic addresses where the CEM will be accessed in Canada. Organizations should audit their electronic address databases to determine if CEMs are sent to Canadian addresses.

Organizations can determine whether the message is sent to a Canadian CEM by auditing the following in their databases:

• A Canadian physical address is associated with the electronic address;
• An email ends with the .ca internet country code; and/or
• A telephone number has a Canadian area code.

If any of these indicators exist, your organization may be sending CEMs into Canada where compliance with CASL is required.

We understand compliance with these requirements can be difficult to execute. Please feel free to reach out to consulting@compliancepoint.com for more information on the requirements regarding CASL, how to comply procedurally, or any other direct marketing compliance matters.