Consent and Anti-Spam

On July 1, Canada’s anti-spam legislation (CASL) will come into force, with the goal of decreasing the amount of spam, or unwanted messages, Canadians receive through electronic means. The legislation will undoubtedly have an impact on how you communicate with your clients and market your practice through digital channels.

Distribution of Commercial Electronic Messages
The law applies to the distribution of commercial electronic messages (CEM), which are defined as messages that encourage recipients to participate in commercial activities. This would include your e-newsletters, market updates and anything else that promotes a business activity, says Javed Khan, president of EMpression: A Marketing Services Co. in Aurora, Ont.

The law covers any form of telecommunication, such as emails, text messages, social networking sites, websites and blogs, says Robert Burko, president of Toronto-based Elite Email, an email marketing company.

Steep Fines
And it is not a law you would want to test. Those who are found guilty of violating CASL can face monetary fines of up to $1 million for individuals and $10 million for a corporation, according to Wendy Mee, an associate at Blake, Cassels & Graydon LLP in Toronto.

One of the key premises behind the law is that you must have permission or consent from anyone who receives an electronic message from you. Consent can come in two forms:

1. Express consent
You receive express consent when someone directly informs you that he or she would like to receive messages from you. The legislation requires that this person be aware of certain details prior to agreeing to this electronic interaction with you, Mee says.

The person must receive your physical mailing address, another form of contact information (your email address or phone number, for example) and a statement that he or she can withdraw consent at any time.

Express consent can be obtained either orally or in writing. Regardless of how you receive the permission, you must be able to explain and prove that the interaction took place.

The good news is that express consent never expires. Once someone provides you with this consent, you have it until that person chooses to withdraw it.

Says Khan: “This is why I say, ‘Focus your effort on getting [express] permission’.”

2. Implied consent
You may not realize that you already have implied consent with most, if not all, of your current clients. This type of consent is based on existing business relationships. It depends, however, on a client having bought something from you or signed a contract with you within the past two years.

In order to keep implied consent, that client must continue to buy a product from you or sign a contract within two years. If that does not occur, you have lost implied consent and it is up to you to seek express consent.

Implied consent also occurs if someone sends you an electronic message with an inquiry regarding your services. Then, you have six months to send them CEMs. However, if they do not provide express consent or follow up with another query within those six months, you have lost that implied consent.

The federal government is allowing a three-year transitional period for business owners to approach their client base and turn that implied consent into express consent.

Burko encourages Canadian business owners to start emailing their clients and contacts now, as this transitional period applies only if you are currently communicating with them.

“If you’re not emailing them currently and then on July 2, you realize you have to start doing this, it’s too little, too late,” Burko says. “On July 2, you can’t email those clients from five years ago.”