BREAKING THROUGH THE CONFUSION ON CASL

Marketers and business professionals continue to struggle with Canada’s Anti-Spam Legislation (CASL). These laws are generally seen as a positive step in the cluttered Canadian market, but organizations face challenges with the regulations due to unclear and contradictory guidelines.

Most of you have heard of CASL by now, and you've probably taken steps to ensure both your own organization and your clients' are in compliance with the legislation (the Government of Canada's CASL website is a useful resource).

Although we’re not lawyers, nor experts in CASL, we frequently help our clients navigate the confusion surrounding it.  As such, we have attended a number of learning sessions over the past few months to stay up-to-date on this topic. During these sessions, we learned some critical points that may not be well understood, so are worth further examination.

Implied Consent vs. Express Consent
One point of confusion is implied consent vs. express consent. Purchasing a product or service from a company gives that company implied consent to send the consumer electronic messages for two years, but what if the buying cycle typically lasts longer, such as a car, or a computer?

Customers may not need a repeat purchase of such products for several years, but by then the company is no longer allowed to contact the consumer via electronic means. Alternatively, businesses can ask consumers for express consent to avoid losing these names.

However, if there is no response by the customer to a request for express consent during the two-year implied consent period, that lack of response will overrule the implied consent already given, and the company can no longer email market to that customer.  It seems prudent, therefore, to wait until the expiry of the 2-year implicit consent period before requesting anything more explicit.

Non-marketing Messages
Another unclear section of CASL allows non-marketing messages to be sent to a list of contacts, regardless of their consent status.  Non-marketing messages include newsletters, events, or even recipes from a cooking website. A company can send anyone an electronic message as long as it does not contain any sales information, or link to any sales information.

However, the company must still clearly identify itself and include an unsubscribe method to allow opt out of further non-marketing materials. The confusion here is that because a non-marketing piece was sent, the unsubscribe link may not necessarily apply to a marketing piece. This is frustrating for the customer, thinking they have unsubscribed from all electronic communications from a company, when, in fact, they have not.

It is up to marketers to be aware of implications, and consider what materials consumers truly wish to receive. Sometimes even though a message may be legal, it's not in the best interest of the company to send it.

What's Next for CASL
Although CASL was first introduced in 2014, there is still significant confusion in the marketplace. This lack of clarity presents challenges to everyone, especially those focused on trying to do the right thing.

In addition, occasional revisions to CASL (both proposed and implemented) make it a challenge to keep current. For example, there is uncertainty around the section of the legislation that permits consumers to sue companies for CASL violations (i.e. private right of action). The Canadian government suspended this controversial section in summer 2017, but businesses remain concerned that it will be revisited. A report by the Federal Government's Standing Committee on Industry, Science and Technology in December 2017 strongly recommended the law be clarified further, but at the time of publication, there have been no significant updates. 

With more clarity, CASL will continue to help protect Canadian consumers from unwanted electronic messaging, and help marketers avoid confusion about what they are, and are not, allowed to send – when, and to whom.