The Marketer's Guide to Applying CASL

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As marketers, you need to understand how CASL – the Canadian Anti-Spam Legislation – will affect your marketing campaigns.

Because this law establishes new requirements for marketers, Transcontinental Interactive in conjunction with other industry leaders – Return Path, The Law Office of Kris Klein and the Coalition Against Unsolicited Commercial Email – has prepared The Marketer's Guide to Applying CASL: How to Leverage Canada's Newest Internet Law. This Guide answers those questions.

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The Marketer's Guide to Applying CASL

  1. 1. THE MARKETER’S GUIDETO APPLYING CASLHOW TO LEVERAGE CANADA’SNEWEST INTERNET LAW
  2. 2. THE MARKETER’S GUIDE TO APPLYING CASL 2HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAWAS A MARKETER YOU NEED TO BE WELL INFORMED ABOUT ANYTHINGTHAT CAN HAVE AN IMPACT ON THE SUCCESS OF YOUR CAMPAIGNS.That is the reason the authors of this Guide – TC Media, Return Path, nNovation and the Coalition AgainstUnsolicited Commercial Email (CAUCE) – have come together to develop a powerful tool that will helpmarketers develop more effective campaigns and therefore improve the experience of consumers ofelectronic messages.This Guide concisely summarizes the details relevant for marketers about CASL – The Canadian Anti-Spam Legislation. But, this document takes one more critical step in helping marketers succeed: Itprovides actionable guidelines so that you can comply with the new law and use it to optimize yourmarketing campaign results.In this Guide, you will find answers to the following questions:»» What is CASL?»» Do I need to comply?»» What do I need to do to comply with CASL?»» What are the penalties of not complying with CASL?»» What should I do now?Finally, this Guide includes The CASL Action Chart which outlines the steps you can take to ensure thatyour marketing campaigns comply and optimize the new law. And, to provide you with a relevant basisof comparison, The CASL Action Chart also compares the new obligations to those under the CAN-SPAMAct of 2003 – which marketers worldwide have been applying to their campaigns. THE MARKETER’S GUIDE TO APPLYING CASL
  3. 3. THE MARKETER’S GUIDE TO APPLYING CASL 3HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAWWHAT IS CASL (BILL C-28)?CASL, The Canadian Anti-Spam Legislation (Bill C-28) will establish important new requirements foranyone using electronic messaging for marketing in Canada.CASL will apply to any form of electronic message sent for marketing purposes (referred to as a“Commercial Electronic Message”, or “CEM”), including: email, SMS, instant messaging and socialmedia/networking.CASL also addresses Internet marketing challenges such as malware, phishing, pharming and other Internetthreats2.DO I NEED TO COMPLY?Anyone sending a CEM (Commercial Electronic Message) from Canada or to someone in Canada issubject to CASL. Canadian and international organizations sending to Canadians are required to complywith the bill.WHAT DO I NEED TO DO TO COMPLY WITH CASL?CASL requires consent before marketers can send a CEM. This is consistent with the long-establishedrequirement for consent under the Personal Information Protection and Electronic Documents Act(PIPEDA) (http://www.priv.gc.ca/information/guide_e.asp). This means that consent must be obtainedbefore a CEM can be sent. There are also a number of circumstances under which consent may also beimplied. These include: (i) where the sender has an existing business or non business relationship withthe recipient; (ii) where the recipient has published their electronic address in a prominent manner;(iii) or where the recipient has provided their email address directly to the sender3.CASL also requires senders to identify themselves, to indicate on whose behalf the message is sent, toprovide up-to-date contact information and to include a functional unsubscribe mechanism.These rules apply regardless of how many messages are sent (i.e. where a single message is sent). THE MARKETER’S GUIDE TO APPLYING CASL
  4. 4. THE MARKETER’S GUIDE TO APPLYING CASL 4HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAWWHAT ARE THE PENALTIES FOR NOT COMPLYING WITH CASL?CASL establishes a civil regime with significant enforcement powers and penalties4. Administrativemonetary penalties can be as high as $1 million per violation for individuals, and $10 million perviolation for organizations. CASL also includes provisions for a private right of action that allows anyperson to seek damages in court resulting from a violation of the law.CASL enables the agencies responsible for enforcing the law – the Canadian Radio-televisionand Telecommunications Commission, the Competition Bureau and the Office of the PrivacyCommissioner of Canada – to work with foreign counterparts in the enforcement of CASL and similarforeign legislation.The good news for marketers is that these penalties and powers are specifically aimed at the mostegregious offenders (i.e., spammers). Organizations that commit an honest mistake while otherwisemaking reasonable efforts to comply with the legislation have protections under the legislation.Most importantly, the ‘due diligence’ defence provides that a person should not be held liable fora violation where they can demonstrate that they have exercised due diligence to prevent thecommission of the violation. This is further incentive to ensure that your organization understandsand complies with the requirements of CASL.CASL ACTION CHARTFollow the guidelines described in the following CASL Action Chart to ensure that your marketingcampaigns comply with and optimize the new law.MARKETERS’ CORE ISSUE:WHAT MESSAGES ARE COVEREDCAN-SPAM CASL COVERS HOW TO OPTIMIZE YOUROnly addresses email. »» Unsolicited Email, SMS, » CAMPAIGNS WHILE Instant Messaging (IM) LEVERAGING CASL Establish a baseline policy »» Spyware, Malware, for interacting with your Phishing, and Pharming subscribers across all »» Social Networks technologies, something that will meet and/or exceed the requirements regardless of the medium. THE MARKETER’S GUIDE TO APPLYING CASL
  5. 5. THE MARKETER’S GUIDE TO APPLYING CASL 5HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAWMARKETERS’ CORE ISSUE:WHO A MARKETER CAN SEND EMAIL TOTO ENSURE YOUR CAMPAIGNS TO ENSURE YOUR CAMPAIGNS HOW TO OPTIMIZE YOURARE COMPLIANT WITH CAN-SPAM ARE COMPLIANT WITH CASL CAMPAIGNS WHILEMarketers can send commercial Marketers can send email LEVERAGING CASLemail to anyone. However, to anyone who has given Segment your subscribersmarketers cannot send consent. Consent may also be (and targets) based oncommercial email to anyone who implied in one of the following expressed preferences,has “unsubscribed” or “opted- circumstances: observed behaviors,out” from commercial email. demographics and customer 1) There is an existing business lifetime value. or non-business relationship between the sender and the Use opt-in consent methods recipient of the message*; for capturing contact information. 2) The recipient has published their address in a conspicuous manner, and the message is related to the recipient’s professional capacity; 3) The recipient has provided their electronic address directly to the sender, and the message is related to the recipient’s professional capacity. Explicit consent exists when the recipient provides the sender permission to send messages. *Definitions of business relationships and non-business relationships can be found at the end of this document. THE MARKETER’S GUIDE TO APPLYING CASL
  6. 6. THE MARKETER’S GUIDE TO APPLYING CASL 6HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAWMARKETERS’ CORE ISSUE:WHEN A MARKETER CAN SEND EMAILTO ENSURE YOUR CAMPAIGNS TO ENSURE YOUR CAMPAIGNS HOW TO OPTIMIZE YOUR CAMPAIGNSARE COMPLIANT WITH CAN-SPAM ARE COMPLIANT WITH CASL WHILE LEVERAGING CASLMarketers can send commercial Marketers can send email only Avoid seeking an “ideal” timeemail at anytime. But, if an email after consent is provided, or can & day to send email. Only sendrecipient has unsubscribed, be implied. emails when you have relevantmarketers must cease any and timely content.commercial email within 10 In most circumstances implieddays, and thereafter must consent lasts for two years. Use preference centers so thatreceive an explicit request subscribers can choose thefrom an email recipient to re- timing and frequency with whichsubscribe before sending any they receive emails.more commercial emails to that If you are relying on impliedrecipient. consent, use this two-year window to gather explicit consent.MARKETERS’ CORE ISSUE:WHAT NEEDS TO BE IN ALL EMAIL MESSAGESTO ENSURE YOUR CAMPAIGNS ARE CASL COVERS HOW TO OPTIMIZE YOUR CAMPAIGNSCOMPLIANT WITH CAN-SPAM WHILE LEVERAGING CASLMarketers need to include: Marketers need to include: To increase the likelihood of»» Valid information in the » »» The identity of the person email being delivered by the Email header who is sending the email Internet Service Providers (ISP), message. ensure the Domain Naming»» Company postal address System (DNS) and the Internet »» If the email is being sent on Protocols match the corporate»» Subject lines that accurately someone’s behalf other than reflect the purpose of the brand sending the email. Also, the sender, the name of that review the guidelines set out in email person needs to be included. TC Media’s The Marketer’s Guide»» A functional unsubscribe »» Company name to Successful Email Delivery. mechanism Run tests (e.g. html coding, spam »» Company contact information words, subject lines, spelling »» Unsubscribe mechanism mistakes, text on graphics, etc.) on your content prior to deploying. Include your postal address as one of the forms of contact information. THE MARKETER’S GUIDE TO APPLYING CASL
  7. 7. THE MARKETER’S GUIDE TO APPLYING CASL 7HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAWMARKETERS’ CORE ISSUE:WHAT A MARKETER NEEDS TO DO TO ACQUIRE NEW EMAIL SUBSCRIBERSTO ENSURE YOUR CAMPAIGNS TO ENSURE YOUR CAMPAIGNS HOW TO OPTIMIZE YOUR CAMPAIGNSARE COMPLIANT WITH CAN-SPAM ARE COMPLIANT WITH CASL WHILE LEVERAGING CASLIf consent has not been While CASL does not outline Follow the guidelines set out in thegathered, marketers need to any specific actions, it demands Personal Information Protectioninclude a notice stating that the that marketers have consent and Electronics Documents Actemail is an advertisement or (either express or implied) prior (PIPEDA) and work with your emailcommercial message. Marketers to sending an email. Marketers service provider to take advantagecannot use address harvesting cannot use address harvesting of online contests and offlineor dictionary attacks to generate or dictionary attacks to generate marketing campaigns.lists. lists. http://www.priv.gc.ca/information/ guide_e.cfm.MARKETERS’ CORE ISSUE:WHAT A MARKETER NEEDS TO DO TO ACCOMMODATE RECIPIENTSWHO DON’T WANT TO RECEIVE THEIR EMAILSTO ENSURE YOUR CAMPAIGNS ARE CASL COVERS HOW TO OPTIMIZE YOUR CAMPAIGNSCOMPLIANT WITH CAN-SPAM Marketers must maintain clear WHILE LEVERAGING CASLMarketers must maintain clear and conspicuous unsubscribe Include an email addressand conspicuous unsubscribe procedures within the email and unsubscribe and a web pageprocedures within the email and honor requests for unsubscribing for unsubscribing.honor requests for unsubscribing without delay.within 10 business days of Use a preference centre to ensurethe request. Marketers must also provide a that subscribers can opt-out, method for email recipients to or opt-down, from individualUnsubscribe mechanisms must easily contact the person(s) publications rather than all of yourremain active for 30 days from responsible for sending the publications. Include ‘unsubscribethe day the email was sent. message. This method must be from all’ as an option. active for 60 days from the dayUnsubscribe mechanism must the email was sent. Ask unsubscribers an optionalbe simple and not require any question, “Why are youadditional information other unsubscribing?” so you can learnthan an email address and a how to modify your campaignspreference to opt-out. based on this feedback. Route unsubscribe reports to a customer service representative so they can be reviewed, rather than to an unattended mailbox. THE MARKETER’S GUIDE TO APPLYING CASL
  8. 8. THE MARKETER’S GUIDE TO APPLYING CASL 8HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAWAUTHORSAs one of Canada’s leading providers of media and marketing solutions, TC Media offers a comprehensiveline of products and services and an integrated approach to activate customers’ marketing. TC Media is oneof Canada’s largest media groups, reaching 18 million consumers through its multiplatform offering. Thegroup, which has nearly 4,500 employees, owns several well-known consumer and business media brandsthat are leveraged across multiple platforms. TC Media is also the leading provider of local and regionalinformation in Quebec and the Atlantic provinces through its extensive network of community papers andonline portals. TC Media is the co-owner of the Metro weekday daily in Montreal and Halifax. It is also theleading door-to-door distributor of advertising material in Canada, with Publisac in Quebec and Targeo in therest of Canada. TC Media is a leader in Canada’s digital industry in terms of both media properties and onlineadvertising representation. With its extensive network of more than 1,000 websites, TC Media reaches morethan 13 million unique visitors per month in Canada. The group also offers interactive marketing solutionsthat harmonize strategy, content and multichannel distribution systems to build lasting relationshipsbetween brands and consumers. TC Media leverages its insights, marketing expertise and proprietarytechnology to anticipate and meet consumer needs using new interactive communication platforms:mobile, data analytics, email marketing, e-flyers and custom content and communications. TC Media isalso active in book publishing and distribution and is the largest publisher of French-language educationalresources in Canada.For more information on CASL and Email Marketing, contact tcmedia_interactive@tc.tcRETURN PATH (www.returnpath.net) works to make email work better by scoring and certifying emailsenders from around the world. We help marketers, publishers and other large-volume email sendersincrease their response rates by providing the world’s leading inbox deliverability solution. We help mailboxproviders and email administrators at ISPs and enterprises block unwelcome and malicious email byproviding near real-time IP reputation scores and other datadriven tools. Taken as a whole, these tools andservices improve the consumer experience of email by protecting them from spam, phishing and otherabuse. Return Path offers free access to Sender Score, the email reputation measure compiled through ourcooperative data network of ISPs and other email receivers, at our reputation portal: www.senderscore.org.For email deliverability tools and consulting services, contact Return Path: rpinfo@returnpath.net THE MARKETER’S GUIDE TO APPLYING CASL
  9. 9. THE MARKETER’S GUIDE TO APPLYING CASL 9HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAWnNovation LLP is a preeminent Canadian law firm specializing in federally regulated matters, includingprivacy, advertising, electronic commerce, and competition law. nNovation LLP lawyers have extensiveexperience in online marketing, and have been involved in the development and implementation of CASL.Look for a compliance guide coauthored by Shaun Brown and Kris Klein to be published by Carswell in the ofspring 2011. For more information, please contact Shaun Brown at (613) 656.1297, or sbrown@nnovation.comCAUCE NORTH AMERICA INC (www.CAUCE.org) was formed in March 2007 in a merger between CAUCE U.S.and CAUCE Canada. CAUCE has moved beyond its original mission of encouraging the creation and adoptionof anti-spam laws to a broader stance of defending the interests of the average Internet user againstSpam 2.0: Spam, phishing malware & spyware. CAUCE North America is led by a combined board witha cumulative century of experience in the field of Internet advocacy, and is funded by its individual andcorporate members. THE MARKETER’S GUIDE TO APPLYING CASL
  10. 10. THE MARKETER’S GUIDE TO APPLYING CASL 10HOW TO LEVERAGE CANADA’S NEWEST INTERNET LAWEND NOTESThis Guide is provided for information purposes only, and is not intended as a substitute for qualifiedlegal advice. The authors make no claims as to the absolute reliability and accuracy of any informationpresented herein, and accept no liability or responsibility for any errors or omissions.1. Bill C-28 (www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/h_ gv00567.html) was formerly Bill C-27, the Electronic Commerce Protection Act (ECPA ).2. Please review “The Digital Economy in Canada” glossary for more details (www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/gv00333.html) or consult the authors of this Guide.3. Both business and non-business relationship are defined at the end of this document. A message can only be sent under the latter two scenarios where the recipient has not expressly stated that they do not wish to receive unsolicited messages and where the message is related to the recipient’s professional capacity.4. Violations of CASL are not criminal offences. Note: The Competition Act includes the ability to prosecute certain violations involving misleading and deceptive practices as either civil violations or criminal offences.KEY DEFINITIONS»» You are considered to have had a business relationship when a customer has purchased/leased a product, good or service, bartered or entered a contract with you.»»» You are considered to have had a non-business relationship when a person donates to, volunteers for, or becomes an official member of, your organization.Copyright 2012This work is licensed under the Creative Commons Attribution- NoDerivs 2.5 Canada License. As a resultyou are free to copy, distribute and transmit this document under the following conditions: 1) You mustattribute the work in the manner specified by the author or licensor (but not in any way that suggests thatthey endorse you or your use of the work); and 2) You may not alter, transform, or build upon this work.For more details see creativecommons.org/licenses/by-nd/2.5/ca/. THE MARKETER’S GUIDE TO APPLYING CASL
  11. 11. CONTACT DETAILS TC Media90 Eglinton Avenue East, 3rd FloorToronto, Ontario, M4P 2Y3 Canada P: 416-361-3522 | F: 416-361-1265 tcmedia_interactive@tc.tc www.tc.tc

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