Let's begin with a few simple definitions as stated by the Canadian Government via the fightspam website (CASL) and the CRTC website. As there seems to be a lot of confusion out there, let's see if we can clear a few things up.
If you are sending a CEM to an electronic address, then you need to comply with three requirements.
You need to:
(1) obtain consent,
(2) provide identification information, and
(3) provide an unsubscribe mechanism.
What is a Commercial Electronic Message (CEM)
A key question to ask yourself is the following: Is the message I am sending a CEM? Is one of the purposes to encourage the recipient to participate in commercial activity? When determining whether a purpose is to encourage participation in commercial activity, some parts of the message to look at are:
(1) the content of the message
(2) any hyperlinks in the message to website content or a database, and
(3) contact information in the message.
These parts of the message are not determinative. For example, the simple inclusion of a logo, a hyperlink or contact information in an email signature does not necessarily make an email a CEM. Conversly, a tagline in a message that promotes a product or service that encourages the recipient to purchase that product or service would make the message a CEM.
Some examples of CEMs include:
(1) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
(2) offers to provide a business, investment or gaming opportunity;
(3) promoting a person, including the public image of a person, as being a person who does anything referred to above, or who intends to do so.
Again, pretty clear. If it walks like a duck, quacks like a duck… I think we all know when we are thinnly disguising a sales pitch.
What is an electronic address?
An electronic address is defined in CASL as being: an email account, a telephone account, an instant messaging account, and any other similar account. Some social media accounts may constitute a 'similar account'. Whether a "similar account" is an electronic address depends on the specific circumstances of the account in question. For example, a typical advertisement placed on a website or blog post would not be captured. In addition, whether communication using social media fits the definition of "electronic address," must be determined on a case-by-case basis, depending upon, for example, how the specific social media platform in question functions and is used. For example, a Facebook wall post would not be captured. However, messages sent to other users using a social media messaging system (e.g., Facebook messaging and LinkedIn messaging), would qualify as sending messages to "electronic addresses."
Websites, blogs and micro-blogging would typically not be considered to be electronic addresses.
So your Facebook wall posts are very different from instant messaging. If you know the CEM is intended for a specific person, consider that their personal electronic address. If it is merely posted for the public or friends and family to see, you're on good ground. Again, think this through. We know the difference. The CRTC is telling us to clean up our electronic messaging act.
Some very senior, seasoned marketing people seem to have lost their common sense in the face of significant potential fines ($10 million) and the possibilty of class action law suits from all those they offend under our new Canadian Anti-Spam Legislation (CASL). In many companies email marketing has ground to a halt, or at best a trickle. Many marketers turned their back on their email list on July 1, 2014, the day CASL began being enforced. Fact is CRTC has allowed us 3 years to "convert" our lists to CASL compliance. 3 years! The spirit of this "grace period" was to allow us all "in the daily course of business", to re-build our lists conforming to CASL's collection rules. So while you can still email those folks, you must include:
1. Who is sending this message. Give the details.
2. Provide a simple one-click unsubscribe mechanism with every single message. No games.
There are 2 separate issues: Collecting email addresses and Sending commercial electonic messages.
When sending an email after July 1, 2014 all Sending rules apply. When collecting email addresses all CASL rules should be applied. But that does not mean you have to throw your June 30, 2014 email list in the garbage!
So let's look closer at what that means.
If you had "permission" to email someone BEFORE July 1, 2014, under Can- Spam and PIPEDA rules, you can still email those people. Period. If you were emailing them and they did not unsubscribe, please keep emailing them. Just follow CASL's simple rules above.
Every message that goes out must clearly state who is sending the message with 2 methods of communicating with them, 1 of which must be the physical location of the sender (mailing address). The other can be an email address or phone number.
And you must have an easy, one-click unsubscribe mechanism. If someone unsubscribes they should not be emailed again. Technology today is such that this should be fairly immediate. CASL is not going to come after you if your process takes a week or so, but any longer is unacceptable to them.
Regarding who you can email until July 1, 2017 have more to do with the rules of Can-Spam and PIPEDA. That is the grace period that CASL has allowed us so as not to shut down email marketing entirely. After July 1, 2017, CASL rules on all levels. HOW you email them today must comply with CASL rules.
Think about it. If someone on your list today has not engaged with you in any meaningful way that has caused them to re-opt in, over this 3 years period, should you be bothering them? And should you be kidding yourself about how big your list is? CASL will, in all liklihood, result in all of us in business having a smaller email list, but it should be far more responsive and engaged – far more meaningful to both parties. It will be far more difficult to use CEM as a customer acquisition strategy, but very effective for communicating with near-customers, existing customers and even past customers (for a limited time period).
So all you marketers who have parked your old email list – stop that! You are allowed to email them. Just include transparent details such as who is sending the email and provide a clear, easy unsubscribe method. You don't want to bother people who do not want to be bothered. You want to communicate – create a two-way dialogue – with people who are or might be interested in your product or service.
On the Government's Anti-Spam Legislation page they state in the Myth/Fact section called GET THE FACTS:
MYTH: I won't be able to use email or my current email list to promote my products and services.
Fact: You can continue to use email if you have express or implied consent from recipients. During the 36-month transition period, you can continue to use your current email list if you have previously provided your products or services to them and they haven't told you to stop.
Let's look at what you need to put in place today to be CASL compliant.
First, you need to update all of your email collection sources to include the following:
All of our webforms that capture email addresses feature this language in the check box, which must be left un-checked. Your subscriber needs to actively check off that box and the copy cannot be buried somewhere in a Privacy Page with a link. We elected not to use a check-box in this instance as the person opting-in has to take a "positive action" by typing out their email to give to us.
This is a big difference from Can-Spam/PIPEDA. CASL requires transparency – up front and forthright. They want to be sure the subscriber knows exactly who and what they are signing up for and they want that person to deliberately take the action.
2. You must provide a specific contact person and at least one easy way to contact that person. Again, this is part of the check-box copy. Once again here is the example of what we are doing at the Direct Marketing Association of Canada – " You can contact Derek Lackey at email@example.com or 416 524 7844. " Once again, CASL is asking us to be transparent rather than hiding behind a no-reply email address. If someone has an issue, they should be able to contact someone and let them know.
3. Your full physical address must be revealed. Subscribers should know where you are located. DMAC states: "You can unsubscibe at any time."We are located at 37 Highway 8, Dundas, Ontario L9H 4V1".
4. Again, different from Can-Spam and PIPEDA, CASL asks us to clearly state in the sign up process that the subscriber can unsubscribe at any time. DMAC's language is simple in this case – "You can unsubscibe at any time."
The total opt-in language looks like this:
Why not use the exact same language on your email footer on every email you send out, along with the unsubscribe link? So the base bar of your email is a little wider. It will contain the open, transparent information that CRTC is looking for.
You might consider this a little over-board, but it is a direct response from the law makers to our "sneaky" negative option tactics that allowed us to build huge email marketing lists. CASL is asking you to use other "mass-marketing" tactics to mass market to people. Email is more personal. And more important: the individual who owns the email address OWNS that email address. It is not there for the convenience of marketers looking to save money by mass-marketing their message to uninterested people. There is an individual at the other end of each message and they deserve to have a say in who emails them and who does not.
CASL intends to aggressively protect that right.
The fact that a decent open rate is in the mid-20 percentile in today's market tells us that 75% of those emailed don't even care enough to open the email. They know WHO it is from by the Sent line on the email. They even know WHAT it is about via the Subject Line. Yet still 75% ignore it completely! Of course some messages get caught up in spam filters and junk folders but most professional email marketers know how to properly address a message and create a subject line that does not send up red flags. Yet still 75% of most email messages are ignored.
As CASL settles into the market place we believe open rates will increase. Only people interested in your brand or product will opt-in. When they are no longer interested or are feeling that you are "over-communicating" they can simply opt-out on the next email message. You will likely communicate to fewer people with higher enagagement. And that's good for all parties. Too bad the Governement had to legislate this because of our collective, rampant abuse of what appeared to be a "cheap" method of communicating with people.
Email is best used to communicate with customers or "near-customers". For 2 years after your last invoice you can even communicate (as long as they don't unsubscribe). CASL is out to ensure that if you are communicating with an individual using their personal communication tools (phone or email), you better have their clear permission AND you better have been very clear WHO and WHAT they are signing up for.
You must also give the easy and quick methods of unsubscribing. In other words, respect the individual's privacy unless they invite you in. There are tons of other accepted marketing tactics. Consider carefully which one you are using for which task. You can ceratinly hammer a nail with the butt of a screwdriver but it is certainly not very efficient. A hammer does a much better job.
Does your marketing toolkit house all the tools available in the marketplace?
This post cover the basics of CASL and how it differs from Can-Spam and PIPEDA. There is a whole lot of details covered in what CASL calls "implied consent". We will cover that in our next article in the series.