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Canada’s Anti-Spam Law (CASL) – interpretation and opinion

Director, Digital Insight

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There is a new law in the Canadian online marketing space called Canada’s Anti-Spam Law or CASL for short. When laws change everyone gets worried. There are good reasons for this worry; all of the best practice are suddenly cast into doubt, and what was bedrock knowledge suddenly shifts underfoot until a new best practice evolves. Since most best practice related to regulation is essentially what doesn’t get you sued, it can be a time-consuming process to find the new normal.

Now, I need to point out the obvious for a moment. I’m not a lawyer, I don’t play one on TV, and I have no special powers to completely and absolutely determine how Canadian courts will interpret CASL. So, please do not use this blog post as legal advice and instead refer to your own legal counsel as to how your own email marketing activities are affected by CASL.

Luckily, Industry Canada takes the questions of marketers seriously and I was able to get some further insight on how this law will roll out into regulations by talking with a representative of the department. Note that even Industry Canada can’t dictate how the courts, the CRTC Competition Bureau, or the Office of the Privacy Commissioner will apply the law, so these notes are also not legal advice.

To stay on top of regulatory guidance, which is coming, sign up for the Fight Spam email alerts to stay on top of this issue.

General rules

Overall:

Send to a friend

There has been some worry in the industry that the CASL regulations will disallow websites from using “send to a friend” or “social sharing” functionality. This is not true.

UPDATE Feb. 21, 2012: there is a Send to a Friend form on the Fight Spam CASL website which creates an email that does not have an opt-out. (It also does not clearly define the concept of a relationship, either). Here is the email that it generates:

From: IMCEANOTES-Brad+20Einarsen+40ICGC@ic.gc.ca – 10:36 AM (47 minutes ago)
To: XXXXXXXXXXXXXX@gmail.com

Brad Einarsen has recommended that you check out this page:

Home

http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00000.html

This page was sent using the “Email to a friend” feature. Your email address has not been added to any list, and has not been retained on our site.

So, the situation remains a bit unclear regarding the need for an opt-out for Send to a Friend functionality. It seems excessive to make this a requirement. Hopefully this will be answered with the guidance being drafted. Stay tuned for updates as they become available.

Social media

Messaging can also be triggered via social media share buttons and other mechanisms, there is a question about how CASL interacts with social media. Some notes:

Risk of frivolous lawsuits

The main risk isn’t that the branded website will actually send spam emails as defined in CASL. The main perceived risk is that individuals will try and use the system to launch frivolous lawsuits against the company. This is not a significant risk because:

So, when it comes to how CASL will affect eCRM once it comes into effect, remember The Hitchhiker’s Guide to the Galaxy: “Don’t Panic”, and remember your towel.

More About the Author

Brad Einarsen

Brad is Klick's Director of Digital Insight, supporting our Strategy, Accounts, and New Business groups to gather, disseminate, and make accessible knowledge about our clients, their products, and the markets in which they operate.

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