Anti-spam rules to weigh on all commercial email

Farmers who market their wares directly to customers by email will need to rethink their efforts come July 1, as new federal anti-spam legislation takes effect.

If you’re already on a company or ag association’s email list for newsletters or promotions, you’ve likely had email lately asking you to provide consent to continue to receive the organization’s emails.

However, the new anti-spam law (CASL) will apply to all commercial electronic messages (CEMs), not just to those annoying emails for cheap meds or knockoff handbags — and not even just to email from corporations or organizations.

For the purposes of CASL, a CEM is a message for which one of its purposes is to encourage a recipient to take part in commercial activity.

From the government’s standpoint, such encouragements include offers to purchase, sell, barter or lease products, goods, services, land or an interest or right in land; offers to provide business, investment or gaming opportunities; or a promotion of any person as someone who does, or plans to do, any of those things.

And if you send CEMs for which you can’t prove you have proper consent from the recipient, and are convicted under CASL, it can quickly get expensive in administrative monetary penalties (AMPs). The maximum AMP for an individual is $1 million per violation; for a business, it’ll be $10 million.

Whether your email to a customer is CASL-compliant or not will depend on the type of consent your customer gave in the past: “express consent,” which will be the new standard after July 1, or “implied consent.”

The way in which you ask for “express consent” can’t just presume consent on the part of the end-user. Silence or inaction from an end-user, or the use of a pre-checked box on a website, also can’t be claimed as “express consent.”

“Express consent” means a recipient has to “opt in” to your email list, whereas “implied consent” means you were given the recipient’s email address and he or she hasn’t “opted out” of receiving your emails.

If it seems as though businesses and associations are in a rush to get consent electronically, that’s because after July 1, “express consent” will have to be obtained either in writing or orally.

Consent to send commercial electronic messages (CEMs) can continue to be “implied” for a 36-month transitional period starting July 1 this year, in cases where there’s an “existing business or non-business relationship” that includes sending CEMs.

If, during those three years, a recipient says he or she no longer consents to get your CEMs, the period of “implied consent” ends. You can take advantage of the transitional period to seek “express consent” to keep sending CEMs. “Express consent” obtained before July 1 will remain valid after the legislation comes into force and last until a recipient withdraws that consent.

“Not the clearest”

Once CASL’s rules on CEMs take effect, if you send any CEM to an electronic address, it’ll have to meet three requirements: obtained consent, identification information, and an unsubscribe mechanism.

There’s an exception to the consent requirement for CEMs sent following a referral. The referral must be made by an individual who has an existing business relationship, an existing non-business relationship, a family relationship or a personal relationship with the sender and the recipient of the CEM.

According to Vancouver lawyers Andrew Aguilar and Ryan J. Black of McMillan LLP, who recently wrote a new guidebook for businesses on CASL, the new law will even affect marketers who make “cold call”-type sales pitches by email.

That’s unless the email addresses they obtain were published somewhere — such as on a website’s contact list, or the salesperson otherwise has express or implied consent to use it.

CASL is “not the clearest, most unambiguous law on the books,” Aguilar recently told Business in Vancouver reporter Nelson Bennett.

As businesses start to apply CASL ahead of the deadline, Black said in the same article, “they are learning it is more complex than they originally thought. There’s a ton of grey areas throughout the act.”

As CASL takes full effect and both federal regulators and private individuals can bring action against violators, leeway may be given to those companies that can demonstrate they at least tried to comply with the new law, Aguilar and Black told BIV.

“If you do your best to comply, and you somehow technically fail, you’re a lot safer than someone who didn’t try to comply,” Black said.

CLICK HERE to order a copy of Aguilar and Black’s publication, which is available for US$89 through Vancouver-based Specialty Technical Publishers. — Network

To start reading Nelson Bennett’s BIV series on CASL and its effects to come, CLICK HERE.

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