Today: Canadian Legislation Attempts to Limit Online Spam

Posted on Tuesday, July 1st, 2014 by Print This Post Print This Post

Categories - Featured, News, SEM

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(Caveat: I am not a lawyer, nor have I played one on TV. However, I am a law graduate and have passed a bar exam once upon a time, so my reading of the law is based on that background. Please consult with a media regulatory lawyer for any compliance issues or questions with this law).

The Canada Anti-Spam Legislation, or CASL, goes into effect today, July 1, 2014. It is Canada’s attempt at limiting the amount of online spam people in Canada receive. CASL affects any advertising done over SMS, text messaging, email, or voicemail to anyone in Canada. The penalties for failing to follow the law are steep – up to $1 million in fines for individuals and $10 million for other persons – and any company wishing to advertise to someone in Canada will be impacted, even if you are based in the US.

What do you need to do to be in compliance?

  1. You must have implied or expressed consent from the consumer to advertise to them.
  2. You must clearly identify yourself and anyone else on behalf of whom the message is sent.
  3. In every message you send, you must provide a way for the recipients to unsubscribe from receiving messages in the future.

Let’s break point 1 down. The consumer must consent to the form of advertising, meaning the consumer must choose to receive it. You can’t have a checkbox saying ‘yes, please send me the latest information’ checked by default on your site; the consumer must choose to check the box themselves. And, you can’t fool the consumer into consenting to advertising by sending it bundled with other consent requests – each consent request for a different purpose must be sent separately.

The tricky part of the consent section of the law comes into play with ‘the installation of computer software programs.’ The law states that a consumer is considered to have expressly consented to the installation of a cookie, html code, or JavaScript code, if the consumer’s conduct suggests a ‘reasonable belief’ that that they consented to the program’s installation. Putting that in layman’s terms, the consumer is OK with getting “cookied” if their behavior suggests that they are. How businesses are supposed to determine this ‘reasonable belief’ standard is not yet clear in the law and most likely will be determined as the law is applied against businesses and individuals. However, this section of the law goes into effect on January 15, 2015, so there is still a little time to get clarity on this point from your friendly media lawyer.

Points 2 and 3 for compliance are pretty straightforward – you need to include valid contact information in anything you send and you must give the consumer a way to withdraw from receiving that advertising, whether by providing an email address or a web link where they can indicate their desire to opt out. For both of these, the information you provide must be valid for 60 days after you send the advertising to the consumer.

Basically, what you really need to know is that the law is changing for advertising online to consumers in Canada, and you need to be prepared. Or be prepared to pay a hefty fine.

For a look at the legal jargon, you can find the law here. If you need more guidance, the CRTC is another helpful source.

 

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