Navigating Canada’s Anti-Spam Law (CASL): Tips For Small Businesses

Canada’s Anti-Spam Law (“CASL”) has been in force since July 1, 2014.[1] Given the complexity of this set of regulations, some small businesses have been struggling to find appropriate means to procure the express consent of their contacts to continue sending their Commercial Electronic Messages (“CEMs”).

Many small businesses are heavily reliant on lower-cost methods of marketing, such as e-mail campaigns, which makes their lack of sophisticated technology to track express consent even more challenging. Small businesses have to view CASL as an opportunity to re-vamp marketing practices and find new ways of implementing a permission-based marketing strategy.

How should I change my marketing and sales activities to be CASL compliant and still gain new subscribers?

• Push interesting content through the company website, social media accounts and blogs
• Publish white papers and newsletters for interested parties to download and provide an option to opt-in to communications upon download
• Partner with associations and agencies working in similar industries who may have an interest in your businesses’ services or products, and are able to market your products to their own clients and members from whom they have already received express consent
• Provide opt-in options at the point of sale or at conferences and trade shows (for example, provide customers with a form to indicate their consent to receive communications when they are paying in-store)
• Use e-mail marketing tools like MailChimp or Constant Contact to facilitate the management of mailing lists and track consent
• Have a system in place that tracks the types of consent being received and how it is being received (for example, record that consent was received by collecting business cards at an event, or through a mailing list sign-up on the company website)
• Before you put your new ideas into action, make sure that the people who have not consented to receive further communications have been removed from your campaign list

Other issues to keep in mind are:

• Businesses have until July 1, 2017 to obtain the express consent to send CEMs to customers where an existing business relationship exists (until then, “implied consent” will suffice)
• You must not reference any commercial information in a non-commercial communication (for example, if your company sends out product updates via e-mail to certain recipients, unless a recipient has consented to receiving CEMs, these updates cannot contain any marketing elements, such as a promotion or discounts to upgrade the product)
• Even where consent to receive CEMs has been received, the sender must maintain a fully functioning unsubscribe system

Inadvertent missteps taken by small businesses with respect to CASL are unlikely to result in serious penalties right off the bat. While CASL provides for extremely high penalties for non-compliance, Industry Canada and the Canada Radio-Television and Telecommunications Commission have stated that harsh enforcement of CASL against small businesses is highly unlikely, and warnings are far more probable.