We're into the fourth month of CASL. How's your compliance coming along?

There is admittedly a lot to know to be compliant with the CASL because it is the most stringent anti-spam legislation in the world. In addition, it covers more than email. It also applies to text messages, SMS messages, and some social media messages.

With the new Canadian anti-spam law taking effect this past summer,* most of the questions we got from clients centered on opt-in, probably because CAN SPAM allows for wiggle room in that area (a.k.a. implied consent) while CASL doesn't. That means marketers are having a harder time understanding what is vs. what isn't allowed when it comes to opting people into a list. With CAN SPAM, marketers do things they can do but probably shouldn't do if they were more focused on email marketing best practices and less focused on list building. CASL forces adherence with the best practices, making it hard for U.S. marketers to wrap their heads around the idea of "express consent."

Implied vs. Express Consent
Express consent is just what it sounds like: not implied, but deliberate. To be compliant, express consent requires an affirmative action. A pre-checked box is not an affirmative action, and therefore doesn't count. Nor is a "yes" box that is pre-checked compliant. Asking a prospect if you can email them and getting a yes in response is express consent.

Time to Review Your Opt-in Policy
If your opt-in policy is less than clear, and you're really only getting implied consent, you need to review your policy. Although implied consent is legal in the U.S., it is not in line with standard email marketing best practices, and it's very limited by CASL. However, there is a grace period. To comply with CASL, you can get by with implied consent for only three years. After that period, you will have to have "express" consent. Note: This grace period applies only to implied opt-ins that occurred before the law went into effect on July 1, 2014.

No More Pre-Checked Boxes
There is admittedly quite a bit of confusion around implied vs. express consent, probably because U.S. marketers were already being sneaky about it. One of our clients insisted that they could still pre-check the box at the bottom of their registration page that said "I agree to the Rights and Use Information and have read the Privacy Policy" and count that as consent because that page linked to a Privacy Policy page that said, "We may use the personal information you provide to allow us to contact you." This is absolutely not okay. Compliance with a privacy policy is not considered an opt-in. An unchecked box in this situation would be fine. A pre-checked box-especially given the convoluted way the supposed consent is achieved - violates CASL regulations.

Texts and Emails Require Different Opt-Ins Under CASL
To be compliant with CASL as an email marketer, you need to explicitly state that you may email them and have them agree to that. If you plan to use SMS for marketing purposes, you also need to get their express (not implied) opt-in to SMS, separate from your email marketing opt-in.

Opt-In Rules Differ Around the World, So Stick to Canada's
If you do international email marketing, you might already know opt-in rules vary by country. Since Canada has the most stringent opt-in rules by far, my suggestion is to make sure you're CASL compliant and you'll be universally compliant (unless another country tops Canada's law!). That also saves you the trouble of finding and adhering to the rules in other countries.

You're Not in Kansas Anymore
Remember: If you're CASL compliant, you're CAN SPAM compliant. Don't worry about the CAN SPAM regulations. Focus on meeting the requirements of the Canadian regulations and you'll be compliant under U.S. laws too.

*Disclaimer: Be advised that this resource includes our informed interpretation of CAN-SPAM (USA) and the Canadian Anti-Spam Law (CASL) and its applications. This post is for informational purposes only. We include it in our blog to help you better understand the law and how it might affect you. We at ClickMail are not lawyers and nothing presented below is-or should be construed as-legal advice. For guidance in regards to adherence with CASL, consult your legal or compliance department.

About the Author:

Marco Marini has been at the forefront of email marketing since its inception as a channel. Prior to co-founding ClickMail, Marco developed pioneering email campaigns for CyberSource, eHealthInsurance, DoveBid, and IBM Canada while holding key marketing roles in those organizations. Clickmail is a part of the ExactTarget Partner Community in both the Channel and HubExchange programs. You can download their eMVision ExactTarget-Tableau Integration app today!