Canadian Anti-Spam Legislation: What Associations on Both Sides of the Border Must Know
If you conduct business or have members in Canada, you may be aware that enforcement of the Canadian Anti-Spam Legislation (CASL) went into effect on July 1st. This law requires the sender of any commercial electronic message to have the consent of Canadian email recipient to receive such email. In other words, Canadian recipients must “opt-in” to your association-related emails. CASL outlines restrictions and penalties related to sending unsolicited emails of up to $10 million per organization per violation, so it is not something to take lightly.
- Anyone who sends commercial electronic messages (emails, texts, or private social network-based messages) must first have the consent of the recipient to send them a message.
- There are two types of consent: implied and express. If you currently do business with an individual, or have done business with them in the past two years, you have an existing business relationship, and implied consent to email that person about the transaction or related activities.
- Association membership is considered an existing business relationship.
- All message senders must have the express consent of everyone they email by July 1, 2017, regardless of business relationship.
There are two parts to the legislation associations should be aware of:
- You must have the consent, whether implied or express, of the email recipient to be emailed. Implied consent is assumed for anyone in Canada with whom your association has a standing business relationship. Such a relationship exists wherever a consumer has purchased a good or service from the message sender within two years of the message being sent. Association membership is included in this definition. An existing relationship also exists when a consumer places an inquiry or application to a business (or association) for more information.
- All of your organization’s emails must clearly identify the name of the sender and how to contact your organization and/or the sender directly. This can (and should) include a reply email address, your organization’s physical address, your website address, and a phone number for general inquiries. You must also include an unsubscribe mechanism in every email that a recipient can easily find and click to have their email address removed from all future emails from your organization.
Most of the requirements contained in the CASL are good email practices that your association should be doing, even if you don’t often email people in Canada.
How can you obtain consent to email?
For now, implied consent to be emailed is assumed on behalf of your Canadian members, vendors, and others with whom you have an existing business relationship under this legislation. Because you already interact with these individuals and conduct informational or monetary transactions with them, it is assumed that they are okay with receiving emails from you that facilitate such interactions.
However, businesses and organizations must obtain express consent from these individuals at some point before July 2017. Express consent means that an individual has given your association an active confirmation, such as checking off a box on a paper or online form, or sending an email to a dedicated account, that indicates they agree to have your organization send them emails related to your activities and programs. You must also obtain the express consent of anyone your association has never before interacted with prior to emailing them. You cannot send an email asking for consent; you must obtain consent first. Express consent is valid until the individual revokes it.
There are a few ways to obtain express consent, such as asking about email preferences on new member/membership renewal forms. This gives your association a seamless way of collecting consent to be emailed at a time when you are already asking the new/renewing member for information. You can also ask for consent by phone, fax, social media post, or in person, as long as the verbal consent is recorded. Those forms of communication are not covered by CASL. Obtaining an individual’s business card that has their email address printed on it is considered giving consent. Be sure to record individuals’ consent to be emailed: if it’s ever in question, the onus is on the association to prove it had permission to email an individual.
Conclusion
It’s a good idea to begin auditing your association’s email lists to ascertain which ones, if any, belong to Canadian individuals. If you are unsure which ones originate in Canada, you will want to ask for consent from everyone on your list to ensure you’re not accidentally in violation of CASL. When onboarding new members, vendors or other associates, ask (in a way other than by email) if the person is located in Canada, and ask for written confirmation that your association can send them association-related emails.
For more information about the CASL, check out this article found on the Canadian Society of Association Executives’ website.
How is your association complying with the CASL requirements? Leave a note in the comments below:
