In the weeks and days leading up to the implementation of the Canadian Anti-Spam Legislation (CASL) last summer, millions of consent-request emails were sent out by a vast array of businesses seeking “Express Consent” from Canadians to continue receiving ‘commercial electronic messages’ (CEMs) from the senders.
The reality is that most of those consent pleas were ignored, including many sent to the customer bases of companies that were well liked and appreciated by the recipients. According to some recently measured aggregate response rates, some 90% or more of those consent appeals simply went unanswered.
For any business that had planned to stop sending CEMs to anyone who didn’t provide their express consent under the rules of CASL by July 1, this would pose a huge problem. The question was how could they continue to communicate with the large majority of contacts in their databases who still had NOT provided express consent to be sent CEMs without breaking the law?
Fortunately, there are a number of practical and effective permission-management approaches retailers and other businesses can follow in order to become CASL-compliant before the ‘real’ teeth of CASL come into effect in 2017.
Express, versus implied consent
It’s important to understand a couple of the key distinctions under CASL as they relate to express, versus implied consent. Very simply, express consent status under CASL can be thought of as a single documented “agreement to communicate electronically” between your business and the contacts in your database.
Implied consent is treated much more broadly under CASL. There are several forms of implied consent, but the designation that applies to many business contacts is where an ‘existing business relationship’ occurs – usually where the contact has provided their email address without any express notice that they don’t want to receive CEMs from your company. These implied consent records are allowable up until July 2017 under CASL.
However, the implied consent that applies to email inquiries your company receives from individuals seeking product or other information after the CASL implementation date of July 1, 2014 only has a shelf life of six months. The implied consent status for these new contacts are now expiring as of Jan 1, 2015 unless converted to express consent. Any new customers acquired since July 1, 2014 without express consent would qualify as implied consent records based on a transaction, and these consent records expire after two years – starting July 1, 2016.
The only practical solution to the complexity created by these expiring consent types is some form of automation. However, most business systems for managing inquiries and transactions were never set up to track consent as mandated by CASL. System vendors are playing catch-up and even six months after the law was enacted, this can seem like a moving target.
Implied consent contacts can’t be automatically converted to the express consent status under CASL without an action on their part. So, how do you upgrade your existing contacts without losing most of your list to meet the requirements of the new law? There are three practical steps you should consider implementing:
- Obtain express consent from all new contacts. If your company hasn’t already implemented a system for obtaining express consent, then this must be your first step. Review all your existing web and paper forms, as well as your point of sale practices, to ensure you’re making the appropriate efforts to acquire express consent from your customers and potential customers. The best way to do this is to have your customers provide consent at checkout, whether in-store or online. This is the easiest way to automate the process, versus maintaining paper records or relying on a verbal consent provided over the phone.
- Keep asking for express consent for existing contacts. Develop a method for upgrading your existing contacts’ consent status over the transition period so you’re not scrambling when the real deadline hits in 2017.
- Manage consent separately from subscriptions. Implement multiple subscription options according to the types of emails you send, such as sales event invitations, flyers and alerts. This allows your customers to control what they receive from you without withdrawing their consent entirely.
In conjunction with the last point above, a key consideration in any CASL consent acquisition strategy should be the WIIFM rule – i.e. “What’s in it for me?” Offering your customers more direct control over the type of electronic communications they receive from you will be perceived as an important and valuable benefit that works in your favour.
You can do this by providing multiple options for the types of email messages you send to your customers and other contacts.
For instance, instead of a single e-flyer that goes to everyone in your database on a monthly basis, think about how your communications can be broken down into different streams or subscriptions. Some of your customers may be happy to get a weekly, or even daily, email alert from you with exciting product or sale information. Others will only want to be notified periodically of major sale events.
If you can break your communications down to even two options from one, you’ve succeeded in putting the basis of control into your customer’s hands. Once you’ve achieved this objective, you can change your CASL express consent request from a plea to comply with the law to a valuable offer along the lines of:
“In an effort to provide you with better control of the types of messages we send you, we’ve introduced additional subscription options to help you select the messages that are most appropriate for you.”
As your customer goes through the preferences management process, they would be asked to update their consent status, giving you the opportunity to solve two problems at once: Meeting your legal compliance requirements under CASL and improving service to your customers.
You can communicate this to your customers by sending out a special message notifying them of the change. Depending on the email system you use, you may also be able to enable a banner that appears automatically in all messages for those where express consent does not exist, making the same offer. You can even do a combination of the two by first announcing the change in a dedicated message and following up with the banner in each subsequent email. The offer or value proposition in the banner should be about improved subscription management and not about CASL compliance.
Give customers preference control and flexibility
Another key concern many retailers and other businesses have around CASL compliance is how to give customers the option to change their consent preferences at any time. Our view is that the more control and flexibility you provide to your customers and prospects to select or reject the specific types of messages they’d like to receive from your company, the more likely you are to have a happy and renewable customer over time.
Key to achieving this objective is making a customer’s consent status and consent history directly accessible to the end user. By setting up a subscription management page that dynamically displays consent status directly to end users, businesses can eliminate the need to ever have to delve into their data records to prove that consent has been granted, because the whole process will be entirely transparent to the user.
One of the key benefits of this approach is that it can help you reduce churn in your marketing efforts by allowing contacts to opt-out of specific subscriptions without necessarily having to remove their consent to receive other types of electronic communications from you. This should also improve the overall deliverability of your outbound messages if you’re sending your contacts only what they’ve said they’re interested in receiving, and if you do so according to the frequency of their choice.
For many retailers, developing a CASL consent strategy can be daunting because the law extends beyond email. However, it is vital not to panic and know that there are existing email marketing and online engagement processes available to make CASL compliance as automatic and as painless as possible for all involved.
While it remains to be seen to what extent the CRTC will be enforcing the rules around CASL, most Canadian retailers are wisely taking the necessary steps to comply with the law now. At worst, this means they’ll avoid any possibility of being subject to fines and censure under the law. At best, they’ll be establishing a sustainable permission management strategy around which they can establish best practices in marketing and customer service that will last for years to come.
This article originally appeared in the Spring 2015 issue of Canadian Retailer.
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