A Practical Approach to CASL Compliance for Associations

In the weeks and days leading up to the implementation of the Canadian Anti-Spam Legislation (CASL) this past summer, millions of consent-request emails were sent out by a vast array of companies, non-profit organizations and associations 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 membership bases of associations 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 organization 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?
There are a number of practical and effective permission-management approaches an organization 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 organization 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 the vast majority of association contacts is that where an ‘existing non-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 organization.
Fortunately, existing member records for associations, clubs and voluntary organizations fall under the auspices of ‘implied consent’, as defined by CASL, and are allowable up until July 2017. However, the implied consent that applies to any new memberships acquired after the CASL implementation date of July 1, 2014 only has a shelf life of two years after the last renewal, which means that the implied consent status for these new memberships will actually begin to expire July 1st, 2016. Simple inquiries your association may receive from individuals seeking membership information from you would generally qualify as implied consent records based on an inquiry, and these consent records  would expire after six months unless converted to express consent.
When it comes to associations, most have spent years of effort building, managing and renewing their member databases. For most associations, the member database is the most valuable asset it owns – sometimes the only real asset. However, the vast majority of these contacts can’t be automatically converted to the express consent status under CASL.
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:

  1. Obtain express consent from all new contacts
    If your association hasn’t implemented a system for obtaining express consent then this is your first step. Review all your existing web and paper forms, as well as your telephone practices, to ensure you’re making the appropriate efforts to acquire express consent from your members and potential members. The best way to do this is to have your members provide consent online. This is the easiest way to automate the process versus maintaining paper records or relying on a verbal consent provided over the phone.
  2. 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.
  3. Manage consent separately from subscriptions
    Implement multiple subscription options according to the types of emails you send, such as newsletters, event invitations, and alerts. This allows contacts to control what they receive without withdrawing consent entirely.

WIIFM rule
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 members more direct control over the type of electronic communications they receive from your association will be perceived as an important and valuable benefit that works in your association’s favour.
You can do this by providing multiple options for the types of email messages’ you send to your members and other contacts. For instance, instead of a single email newsletter 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 members may be happy to get a weekly, or even daily, email newsletter from you with important association information. Others will only want to be notified periodically of important industry changes or special 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 member’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 the member 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 members.
You can communicate this to your members 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.
Another key concern many associations have around CASL compliance is how to give members the option to change their consent preferences at any time. Our view is that the more control and flexibility you provide to your members and prospects to select or reject the specific types of messages they’d like to receive from your organization, the more likely you are to have a happy and renewable member over time.
Key to achieving this objective is making a member’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, organizations 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 association’s 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 your organization. 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 associations, 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 associations 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 member service that will last for years to come.
Keith Holloway is the Founding Partner of Envoke.com.
This article originally appeared in the April 2015 issue of Association Magazine.

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