Canadian Anti Spam Legislation & Customer Surveys
After 1st July requesting feedback from someone in Canada could cost you up to $10 million!
On July 1, 2014, the new Canadian Anti-Spam Legislation (CASL) comes into effect. Designed to protect Canadian citizens from spam, it introduces what is probably the most comprehensive controls on electronic marketing. In essence, CASL requires a company to have “express consent” before sending “commercial electronic messages” (CEM) to someone in Canada. Requesting feedback electronically might fall into this category.
Before exploring CASL’s impact on surveys, here are a few basics.
The legislation covers (amongst other things) Commercial Electronic Messages, which include messages to email addresses, social networking accounts, and text messages.
Express consent, a positive and explicit opt-in, is needed from each individual before any message can be sent. Unchecked optout, pre-checked opt-in boxes, and assumed consent are not acceptable methods. Consent can be verbal but the onus is on the sender to prove express consent. Use of email to request consent after the 1st July is not allowed as it constitutes an unsolicited mail.
Any CEM must include details of the sender and a way to opt-out of future messages.
What’s not included?
The legislation sets out a number of exclusions/exemptions.
Implied consent allows CEMs to be sent to existing business relationships where the recipient:
- Purchased something from the sender in the two years before the CEM and the CEM relates to that.
- Has a contractual relationship with or which has expired within the last two years.
- Inquired about products and services in the last six months.
Exceptions to the requirement for express consent include:
- Where the recipient has been in a business relationship BEFORE the 1st July 2014 AND had not expressly opted-out, consent is implied until 1st July 2017.
- CEMs that concern the activities of the sender or recipient where the organizations already have a relationship.
- The first CEM where the recipient was referred to the sender by a third party only if the sender and recipient are both in a personal or business relationship with the third party.
Implied consent is effectively renewed with each subsequent transaction, even when that person has expressly opted-out.
Interestingly, the politicians have granted themselves a blanket exemption: mass-mailings requesting political or campaign contributions are excluded!
CASL and Customer Surveys
The Canadian Market Research Industry Association has received “…definitive confirmation from the federal government that the new law won’t apply to legitimate marketing research where there is no attempt to solicit.”
This does not give carte blanche protection for all surveys; there remain two grey areas.
- How will “attempt to solicit” be interpreted?
- Is offering an incentive to complete a survey an “attempt to solicit”?
As the legislation is yet to be tested in courts, there is no guidance on these questions. It is clear that any attempt to mix research with marketing will leave a company at risk under CASL. This suggests that implementing express consent is the only sure path to avoid problems.
What to do
We believe the legislation is not an issue for companies that use best practices in their feedback programs, specifically if they:
- Seek permission for participation in surveys, distinct from other marketing communications.
- Apply business rules to prevent over-surveying.
- Capture channel preferences.
- Provide opt-outs from future feedback.
- Establish a Preferences Centre as part of a single customer view in CRM.
- Minimise the likelihood of survey opt-outs with prompt follow-up of dissatisfaction and regular communication of actions taken based on feedback.
Here’s what anyone responsible for sending surveys that include Canadian recipients should do to comply with CASL:
- Ensure appropriate senior managers are aware of the requirements of the legislation.
- Identify Canadian contacts in your customer database.
- Mail them BEFORE the 1st July requesting express consent.
- Record their response as proof of express consent.
- Review Canadian contacts to identify and flag those that are covered by exemptions/implied consent.
- Review survey invitations to ensure opt-out mechanisms are included.
- Check any legal agreements that cover feedback to reflect the CASL requirements.
- Brief staff of the essence of the legislation; CEM includes mails sent by individuals, not just mass-mailings.
- On 2nd July, set to “Do not contact” any new Canadian contacts that have not provided express consent or do not meet one of the exemptions listed above.
- Work with colleagues in Marketing and other teams to establish a preferences section in CRM (or other customer database) that allows you to record contacts opt-in to different communications.
- Extend the preferences to include customer’s choice of channels.
- Build survey toxicity into individual contact records that enact contact rules and customer preferences.
- Identify and implement methods for building express consent (opt-in) into customer interactions.
Please note that under the terms of Clicktools Subscription Agreement, you are responsible for ensuring that your use of Clicktools is within “applicable law.” Clause 5b (iii) states you will “ use the Services only in accordance with the User Guide and all applicable laws and government regulations.” This includes CASL.
More details on CASL can be found on Canada’s Anti-Spam Legislation website.
CASL is another area where you can take advantage of Clicktools and its CRM integration. Preferences can be automatically updated with opt-in forms that integrate with CRM and trigger an email confirming the preferences selected. Using opt-in information stored in CRM makes it easy to fulfill the “do not contact” obligations of CASL.
To help our customers, Clicktools has created a template opt-in form that addresses the needs set out in CASL. Contact your Customer Success Manager for further information.
DISCLAIMER: This note is intended only to highlight the issues the legislation creates. Companies are advised to seek specialist legal help and must not rely on this post as definitive or legally valid advice.