Some Thoughts on CASL

Before I start, please read this:

As a web designer and e-mail marketer, these comments and thoughts are based on my interpretation of Canada’s new Anti-Spam Legislation (CASL) based on my research and conversations. Since key components of CASL kick in on July 1st of this year it is best to consult professional legal consul for clarifications on the various elements of this legislation and how it will affect your marketing operations.

For the past month I have been attending a variety of talks and having conversations with legal acquaintances on “The Canadian Anti-Spam Legislation (CASL)”:http://fightspam.gc.ca/eic/site/030.nsf/eng/home. Since this legislation posses to severely disrupt the marketing plans of many businesses and non-profit organizations, I felt it was time to jot down a few thoughts regarding the legislation and why people should pay attention.

1. What is CASL

You can read about CASL on “the government’s web site”:http://fightspam.gc.ca/eic/site/030.nsf/eng/home, but as with any legal document and government document for the average citizen the information within isn’t as clear as could be. So if you’re looking for resources in a more plain language you may want to check out these resource:

* “MillerThompson’s CASL information”:http://www.millerthomson.com/en/our-services/anti-spam-casl and “one-pager”:http://millerthomson.com/assets/files/article_attachments3/CASL-on-a-page.pdf.
* “Stephen King’s Blog Post”:http://stephdokin.com/10-tips-to-prepare-for-canadas-new-anti-spam-law-casl-starting-july-1-2014/?utm_content=buffer08bda&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer
* “Elite Email’s guide to CASL”:http://www.eliteemail.com/learning-center/casl/page6.html and “CASL in plain language”:http://blog.eliteemail.com/2013/05/16/all-about-casl-canadas-anti-spam-legislation/.

There are elements of CASL that make a tonne of sense, such as rules about subscribe buttons, adding physical mailing addresses and properly representing your organization in e-mail communications. Where CASL really gets confusing is in the definition of expressed and implied consent.

2. I’ve Heard a Lot of People Talking About It, But Is CASL Really That Bad?

From an e-mail marketing and small business owner perspective, my interpretation is that CASL is bad. Really bad.

One of the most confusing elements of CASL is that by *July 1st, 2014* all senders of commercial emails (i.e. email newsletters, advertising emails, anything to do with E-Mail Marketing lists) must have received expressed consent from receivers *and* be able to prove that they received “expressed consent”:http://www.eliteemail.com/learning-center/casl/page5.html to continue sending out e-mail messages to existing subscribers. _After_ July 1st, they will not be able to ask for expressed consent for existing e-mail marketing lists.

In laman’s terms, what this means is that businesses and organizations who have spent year’s building an e-mail marketing list *need* to sent a note out to all their users and request them to send an email back of written consent saying that they agree to receive e-mails from the business or non-profit moving forward. And this has to be done by *July 1st, 2014*. After that you’re not allowed to ask for expressed consent from those lists.

Now, as any e-mail marketer knows, the average good open rate for emails is about 20-30% for a single email blast, with a click through rate between 10-15%. So knowing those numbers the likely hood of 100% of your current e-mail marketing list replying back with expressed consent will be far less. In my opinion, this will be the biggest damage that CASL imposes on to organizations, by essentially making their existing marketing lists useless.

3. No seriously, is CASL really this Bad?

Yes and in my opinion, it should be taken very seriously. I maybe just an e-mail marketer, but there are two key reactionary signs by other groups to help understand how serious this law _actually_ is.

The first indicator, is the reaction by many legal firms to CASL. For the past few weeks, many people have started receiving emails from Legal firms requesting *expressed consent* for e-mail marketing subscriptions. Given that it’s the job of legal firms to understand and abide by all aspects of the law, their serious reaction is a telltale sign about how important CASL compliance is.

The second indicator, is actually one of the key exemptions of the law. It also has to be the most comical aspect of the legislation. There is actually one group of organizations that is completely exempt from CASL and that’s *political parties*. Not to sound like a conspiracy theory nutjob, but if CASL _wasn’t a big deal and wasn’t disruptive_, I doubt a genre of organizations that rely solely on e-marketing for funding wouldn’t be exempt from CASL’s rule.

4. But I’m Using Constant Contact, Mailchimp, etc., I should be fine with CASL.

Unfortunately not. Since many of the top e-mail marketing tools out there are American based, many of them haven’t taken the proper steps to become CASL compliant. (Although, many of their existing features do cover some elements of CASL) When you factor in how small of a market Canadian subscribers are to their bottom lines and the fact that compliance with CASL rolled out within 6 months, it’s easy to understand why these top companies don’t have the proper tools in place to help Canadian marketers.

In addition, it’s also not the responsibility of Third Party providers to receive consent for e-mail marketers, that responsibility rests solely on the heads of *the sender*. So in the end hiding behind a third party provider won’t be good enough under CASL.

In the two talks I’ve attended, the most fascinating aspect of CASL has been watching the audience reaction upon understanding the key elements of the legislation. Most people’s reaction, and my own included, swayed from intense rage to out right denial.

For a legislation designed to help consumers and prevent SPAM, CASL appears to be doing more harm to business owners and non-profits than good. The fines for “CASL are pretty extensive”:http://www.davis.ca/uploads/files/CASL-Penalties.pdf and it opens the door for private litigation against companies that don’t comply, so it would be wise to make these changes. CASL should be taken seriously by all businesses and non-profits, if you have questions do your research and contact legal consul.

But do it quick, as many of the key elements of this legislation kick in just over a month.