What You Need to Know about Canada’s Super-Strict Anti-Spam Law

What Canada’s Anti-Spam Law Means for Your Email Marketing Program

Heads up, American online business owners!

Our neighbors to the north now have one of the toughest new anti-spam laws in the world. Canada’s government has been phasing it in gradually, and if and when the final provisions are fully implemented, individual spam recipients in Canada will be able to sue businesses for breaking the law.

That means you need to know the rules for email marketing to Canadian customers and clients.

Before we delve into the details of email marketing to Canada, if you’re not seeking Canadian customers already, now’s a good time to ask yourself why not—especially if you plan to expand into other countries later on.

US-based businesses earn about a third of Canadian consumers’ cross-border purchases, and Canada’s total e-commerce spend will reach $50 billion within two years. With a shared language in much of the country and similar holidays, it’s a good “starter” market for international sales expansion – as long as you play by the digital marketing rules.

What are the differences between US and Canadian anti-spam laws?

Each country’s anti-spam rules are detailed and cover a lot more ground in legal language than we can cover in a short article. Here are the main points for comparison.

In the US, the CAN-SPAM law, which stands for Controlling the Assault of Non-Solicited Pornography and Marketing:

• Applies only to marketing emails sent by businesses to consumers.
• Puts the burden on email recipients to opt out of receiving messages they don’t want.
• Doesn’t go into details about marketing emails sent to American recipients from outside the US, according to Canadian law firm McMillan LLP . North of the border, it’s a different story.
• Requires an unsubscribe process that can take multiple steps to complete.
• Can result in fines of up to about $40,000 per violation.

Meanwhile, Canada’s Anti-Spam Law (CASL):

• Requires senders to contact only people who have opted in to receive marketing messages or who have an existing, recent business relationship with the sender.
• Applies to all marketing messages that are sent or accessed on Canada-based computer systems, meaning that the messages into Canada from abroad are subject to CASL.
• Covers all forms of electronic direct marketing, including texts, voicemails, videos, and images to both consumer and business recipients.
• Requires a faster, more streamlined unsubscribe process than CAN-SPAM.
• Prohibits installation of software on recipients’ devices without their permission.
• Assigns “potential vicarious liability for directors and officers of corporations and employers of employees acting within the scope of their employment.”
• Can result in penalties of as much as $10 million for corporations found in violation of CASL.

CAN-SPAM has been around in the US since 2003. CASL is more recent and has been phased in since 2014. CASL’s final phase – allowing individual spam recipients to sue senders – was supposed to take effect this summer. However, the Canadian government put it on hold for further review, saying it was concerned about the regulatory burden on businesses and nonprofits.

 

How can you stay on the right side of Canada’s anti-spam rules?

Compliance is important, not only for legal reasons but also because your email marketing service and  web host may close your accounts if you get flagged as a spammer. In general, if you follow CASL’s stricter rules you’re also probably CAN-SPAM compliant, although you should check with your business attorney if you have questions. Just remember that basic courtesy can help your business stay on the right side of your recipients—on both sides of the border:

• Only send marketing messages to people you’ve done business with within the past two years or who have asked to join your list. This should keep you within CASL’s implied consent time frame, and anyone who hasn’t followed up with you after two years is likely no longer interested.
• Identify your business clearly in all your marketing messages.
• Ask prospects and customers to opt in to your marketing messages by entering their email address or checking a permission box on your sign-up form (like the ones detailed in this email marketing how-to post).
• Be transparent. It’s not good business to bury marketing consent in your terms and conditions, and in Canada it’s not legal to do so.
• Include an opt-out tool with every message you send, whether by email or text, and make it easy to use. This not only keeps you compliant with CASL’s detailed opt-out rules and CAN-SPAM’s more general ones, it also sets you apart from the “wrong direction” trend of retailers who are making it harder for email recipients to opt out.
• Comply with opt-out requests quickly.
• If you outsource or don’t directly oversee your company’s email and text marketing programs, make sure you check in regularly with your contractors or managers to ensure their programs are both CAN-SPAM and CASL compliant.

Making sure your emails and texts comply with CASL takes some time, but the investment can pay off in the form of new customers–plus cross-border marketing and sales experience you can use to expand into even more markets abroad later on.

• For more information on CASL, visit the Government of Canada’s CASL web portal.
• To learn more about CAN-SPAM, see the FTC’s anti-spam compliance guide for business.
• Find out more about selling into Canada at the federal BusinessUSA site.