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CASL – The Hierarchy of Email Consent

By Derek Lackey

Not All Email Consent is Equal

Some forms of email consent are just better than others under our new CASL rules.

What makes them better is:
1. the clarity of the opt-in. An Express Opt-in, presented with CASL compliant language and information is always an intentional act on the part of the person opting -in. There is no ambiguity. Nothing is implied, it is explicit and clear. 
2. Low maintenance. An Express Opt-in can be added to your email list and, with the exception of the individual unsubscribing, be valid for life. There is no time limit. Most other forms of opt-in have to be re-confirmed every 2 years, so maintenance can be a pain.


The best form of opt-in under CASL is clearly EXPRESS CONSENT.

If you meet CASL's criteria and an individual opts-in, you can email them as long as they do not unsubscribe. It is clean and simple. They want your messages or they don't. I believe the average open rate of emails will increase as CASL's full impact rolls out over the next few years. Many marketers are emailing hundreds of thousands of email addresses insisting that a 20% open rate is acceptable. If they had the data, I would suspect that the same 20% open most of their emails because they are actually interested. The other 80% are not and given a choice, would not opt-in.

Size matters, but not when it comes to old-style email lists. Let's start seeing 75% open rates. That should be your first clue that your potential audience is interested and even remotely engaged. When 80% consistently do not even open your messages, who are you kidding? Is it better to tell your boss that you emailed 100,000 people and 20,000 of them opened your email or that you targeted 25,000 interested people and 20,000 of them opened your email? I certainly know which scenario would interest me as a boss.

CASL_Infograph3_ENG Reproduced with the permission of the Canadian Radio-television and telecommunications Commission on behalf of Her Majesty in Right of Canada, 2015

The next best type of opt-in is your customers and near customers – CRTC refers to them as EXISTING BUSINESS RELATIONSHIPS.

These have a 2 year expiration. So if you are a customer, I can email you for 2 years from the date of your last transaction (invoice). If you are a prospect who has enquired, I can email you for 2 years from the date of your last enquiry. The messy part of this is tracking, in real time, those status changes. Remember the burden of proof is 100% on you. So you must track this and be able to prove that this person enquired/transacted on this date so you can continue emailing that indivdual for 2 years from that date. Once again, all unsubscribes must be removed from your email list within 10 days of their request to unsubscribe.

The next level is reserved for charities and non-profits. CRTC refers to them as EXISTING NON-BUSINESS RELATIONSHIPS.

They are defined as" You are a charity, a political party or a candidate and the recipient has provided you a gift, a donation or volunteer work. You are a club, association or voluntary organization and the recipient is one of your members." Once again, if they unsubscribe you must cease emailing them within 10 days of their request.
The CRTC expects you to prove they qualify as an "existing non-business relationship" so you must once again track their status in real time, changing your database as their status changes.

The next level is for B2B marketers. If someone "CONSPICUOUSLY PUBLISHED their email address and their title without restrictions, and your message relates to the recipient's functions or activities in a business or official capacity". The big caveat here is: these email addresses cannot be collected using 'bots' or automated processes. You will have to answer to the Privacy Commissioner's Office if caught doing that. Like EXPRESS CONSENT, this form of consent has no time limit but a request for unsubscribe must be dealt with within 10 days. Proof may require that you need to take a screen grab or scan of the place where the email address and title were conspicuously published and attach it to that file.

  CASL_Infograph6_ENG Reproduced with the permission of the Canadian Radio-television and telecommunications Commission on behalf of Her Majesty in Right of Canada, 2015

My least favorite form of consent is PERSONAL RELATIONSHIP. For starters, all emails must be sent from that individual, NOT from the organization he/she represents. To qualify, "the sender and the recipient have to have had direct, two-way communications in the past."

But it's worse. You have to prove that in past communications you shared interests, experiences, opinions or information with each other. You must prove these communications were frequent and recent. You must also prove that you have met this person and know them personally (not just their alias or their social media profiles). SO somebody who "likes" one of your posts does not constitute a personal relationship under CASL.

Again, this one is messy, convoluted and will be difficult to prove. I call this "consent of last resort" under our new laws.

So before you rush off and email the world, consider what CASL considers as consent. And be prepared to prove whichever level of consent you are claiming.



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