Canada's New Anti-Spam Legislation: How Will This Impact Your Commercial Mail-outs?
Have you sent any promotional email lately? Does your business regularly make use of promotional email campaigns? If the answer is yes (and this is likely the case for most businesses), then you’ll need to pay attention to Canada’s new anti-spam legislation that will be coming into force in the summer.
This new law applies to any business in Canada that is currently utilizing email for any commercial purposes and to any business outside of Canada that sends commercial email to Canadians. For the music industry in particular, this means that any of the following types of email interactions are going to fall under the provisions of this new legislation:
- Any emails sent between publishers, labels, consumers, and prospective talent.
- Any emails between agents and prospective talent.
- Potentially any messages involving rights clearance.
In short, all promotional email will be affected by the new law
While this may seem fairly common-sense, the law applies to all commercial email. This means that any promotional email you might send for your music company, band or business will be subject to these new legal requirements, to be ignored at your own risk. The law includes a maximum fine of $1 million for individuals and $10 million for corporations found to be sending email without complying with the law.
The rules come into effect July 1, 2014, leaving you just a few months to educate yourself on the new requirements. We’re going to do our best to ensure that you have sufficient information that can begin to help you prepare for the transition into CASL compliance.
Please note that none of the following information constitutes an expert legal interpretation. For technical questions about how the law will impact your business, you should consult a lawyer.
Most commercial email will be prohibited unless 3 conditions are met: express, or in some cases implied, consent, contact information and an option to unsubscribe.
The foundation of the new anti-spam law is that most commercial email is prohibited unless it has:
- Identification of who is sending the email, plus specifically prescribed contact information for that person.
- Express or implied consent (explained below) from the recipient.
- An ability to easily from receiving email communications from your business.
The types of business email that are excluded from the law include the following:
- Email sent between people who have a family or personal relationship.
- Responses to consumer requests, inquiries and complaints.
- Two-way telephone conversations between individuals.
- Mail sent to satisfy a legal requirement.
- Faxes and voicemails sent to telephone numbers.
The following types of business email have an exception to the need for consent, but must include mandatory disclosure and an unsubscribe in the message itself:
- Warranty, product recall, safety or security information about a product already purchased.
- Factual information about ongoing use or ongoing purchase by the recipient (this would apply to subscriptions, memberships, accounts, or similar relationships).
- Information about an employment relationship or related benefit plan in which the recipient is currently involved.
- Receipts or confirmations of an already completed transaction.
- Email that actually delivers a product, service or upgrade that the recipient is entitled to receive.
- The first email sent to a new business contact whom the sender has been personally referred to by another individual. The referring individual must have an existing business or non-business relationship with the business, and an existing business, non-business, personal or family relationship with the person referred. In this case, the referral must be referred to and the full name of the referring individual must be disclosed.
By-and-large, it is promotional email which will be most affected by this law; many emails generated as a part of a normal business flow (normal communication between businesses with a relationship, quotes requests, receipts, purchase orders, etc.) will be less impacted by these new restrictions. Industry Canada has also indicated that ‘publications’ on social media websites, such as blogs, tweets and Facebook updates, will also be exempt from the CASL provisions.
What does express consent mean?
In most cases, express consent means that the recipient must have expressly agreed to receive commercial email from the business, orally or in writing. The CASL outlines that a record of consent to receive messages must be sought from any recipients to your company’s commercial email. Businesses or individuals seeking consent from potential consumers must include the following information in any oral or written request for consent:
- The name of the person seeking consent, plus the names of any parties they represent.
- The mailing address, plus either a telephone, email or web address of the person seeking consent.
- A statement indicating that the person whose consent is sought can withdraw their consent.
Businesses and individuals should keep detailed records of all requests for consent, oral or written.
In a few select cases, consent can be implied. Most notably, if a pre-existing business or non-business relationship (as specifically defined in CASL) exists between the sender and recipient, or if the recipient has published their email online without a request to not receive unsolicited messages and the message pertains to their business.
Implied consent is subject to many restrictions. In most cases, consent will need to be expressed.
When you have consent, certain contact information needs to be included in every email.
Prior to this act, promotional emails were only required to contain the mailing address of the sender. Now, they must have the name of the party sending the email (and any parties that person may represent), as well as a mailing address and either a phone number, contact email or web address that facilitates direct communication.
Every commercial email not under the exemptions above will need to have this information in an accessible place. In order to keep businesses free of liability, this contact information must be kept up-to-date.
Every email must have an option to unsubscribe from future emails.
It’s been standard practice for some time now for commercial mailing lists to have easy ways for recipients to unsubscribe, but now it’s the law.
In every commercial email, recipients must be able to indicate the wish to no longer receive emails from the sender using electronic means. Emails must specify an email address or web page to which the request can be sent. The person must be unsubscribed from the mailing list within 10 business days.
What can you do to best protect yourself or your business from liability under this new law?
If you haven’t already begun using a professional mailing client to manage your commercial email campaigns, it is highly recommended. MailChimp and Constant Contact are both clients that stay abreast of legal requirements, requiring users to place the legally required information in each email. In addition, they completely automate the subscription/unsubscription process.
Over the next several months, CIMA will continue to keep you updated on how this new law will affect your business, and what you can do to ensure that the commercial email you send is compliant with CASL.
For questions about this law not requiring an expert legal opinion, email CIMA’s Research & Communications Coordinator, Lisa Fiorilli, at lisa@cimamusic.ca
This article was submitted by Susan H. Abramovitch and Christopher Oates,susan.abramovitch@gowlings.com and chris.oates@gowlings.com. Gowlings. 1 First Canadian Place
100 King Street West, Suite 1600, Toronto, Ontario, Canada M5X 1G5.t. 416-862-7525
http://www.gowlings.com/