What you need to know about the hidden, rolling CASL deadlines

Last year, the Canadian Anti-Spam Legislation (CASL) went into effect, which means this year many valid email addresses will become off limits, not only for spammers but for businesses, too.
It is generally understood that businesses and organizations have three years to upgrade their existing email contacts from implied to express consent under CASL.
Express consent is straightforward in theory, if not in practice. It is a documented agreement to receive “commercial electronic messages” (CEMs) between each contact in your database and your organization.
Implied consent is more complicated and the source of much confusion. When CASL went into effect on July 1 last year, companies could categorize their existing contacts as having an implied consent status based on an “existing business relationship.” This effectively grandfathered existing contacts and made it “business as usual” — at least until July 1, 2017.
However, few know that CASL creates a special kind of implied consent for “inquiries” that expire after six months. This type of consent applies to any new contacts acquired since July 1, 2014 where express consent was not obtained. This means a new contact who requested information in July of last year implicitly agreed to receive your CEMs until this January, when their implied consent status expires.
This assumes the contact didn’t explicitly unsubscribe from your list, you didn’t subsequently obtain express consent from the contact or they didn’t make another inquiry, which would extend their implied consent status six months from the new inquiry date. CASL creates a similar implied consent type for “transactions,” except with a 24-month expiry period, which means another hidden deadline looms on 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.
These new requirements are further examples of the challenges created by CASL for Canadian businesses. The principle of encouraging organizations to follow a permission-based approach to electronic marketing is sound. However, the drafters did not give due consideration to the practical impact of the legislation.
The Canadian Radio-television and Telecommunications Commission also appears to be struggling with its mandate to enforce CASL. The agency has received more than 140,000 complaints since the legislation came into force and have completed only one investigation. In that case, spam was being sent by undetected malware from a server at a Canadian Internet Service Provider. The malware was removed after complaints to the Anti-Spam Reporting Centre.
Until the CRTC takes action against a company under CASL, it’s impossible to know just how far they are prepared to go. Certainly, penalties for non-compliance when the law comes into full effect in 2017 have the potential to be severe, including criminal charges, personal liability for company officers and directors, and corporate penalties up to $10 million.
Perhaps the challenges caused by CASL will result in changes to the legislation before then, but I wouldn’t count on it. The prudent approach is to get express consent from as many of your contacts as possible during the transition period. This will probably require some form of automation to capture, upgrade, store, and manage those consents.
The following are three steps you can take:

  • If your business or organization hasn’t implemented a system for obtaining express consent then this is your first step, starting with the forms on your website.
  • Develop a method for upgrading your existing contacts consent status in the transition period.
  • Manage consent separately from subscriptions, such as email newsletter subscriptions and alerts. This allows contacts to control what they receive without withdrawing consent entirely.

At the end of the transition period I anticipate another round of last minute emails imploring contacts to provide express consent. Based on data from the first round last June, this approach will lead to a loss of more than 80% of your database.
July 1, 2017 may seem like a long way off, but you’ll need that time to upgrade your contacts to express consent. If you haven’t already, take full advantage of the transition period and start adapting to CASL now.
Martin Millican is president of Envoke.com.
This article originally appeared in the Financial Post.

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