Email Marketing Rule Change July 1 – Are You Ready?

Canada has a new anti-spam law that will enter into force on July 1st. What does this mean for business owners like you and me?

Well, it means that we have to have expressed or implied permission to send commercial emails to our lists. A commercial electronic message (CEM), by the way, is any email, text, or post to an individual’s social media account with the purpose to encourage the recipient to participate in commercial activity, even if there is no cost to it. This will affect how small business, corporations, and non-profits communicate with potential clients and customers.

A little note here – I’m happily sharing what I’ve uncovered concerning this new law but I am not a lawyer. If you have circumstances that are not covered in the links I share, please do confer with your lawyer. They can give you a better feel for your particular situation.

What the Law Says about Emails
The law, in a nutshell, states that when we send CEM, three things must be considered:

  1. Expressed or Implied Consent: Do you have consent from the recipient to send them messages?
  2. Identification: Have you properly identified yourself in your email, including a mailing address? This contact information must be valid for at least two months after the message is sent
  3. Unsubscribe Mechanism: There must be a simple, immediate way for the recipient to permanently unsubscribe from further communications

The Difference between Expressed and Implied Consent
I have a colleague who emailed each and every person she put on her email list. She just sent a little note saying how great it was to meet them and asking if she could add them to her email list. She has expressed consent from every single one of her list members and the back up to prove it.

Other examples of expressed consent:

  • Opt-in on your website: If someone has entered their email address into your newsletter sign up, they’ve given expressed consent. Also, if they’ve clicked a box next to a “Subscribe Me” type of message, you’re golden. If, however, you’ve checked the box for them and they have to uncheck it to show that they don’t want the messages, that is NOT consent
  • Verbal agreement to allow messages: You can take verbal agreements but remember that the onus is on you to prove that you’ve been given the consent. It will be wise to record or have a witness in accounts of all verbal agreements

Examples of implied consent:

  • Business cards: If they’ve handed you a business card – and not said that they don’t want the communications – you can add them to your list. As long as the messages you’re sending relate to their professional role, you’re probably fine. It might be wise, however, to have a confirmation process. Again, the onus will be on you to prove that you have consent if an issue arises
  • They’re already in a business or non-business relationship with you: If you already send CEMs to someone, you have 36 months from July 1st to secure expressed consent from them. There is a hitch, however. As I read it, after July 1st, you will not be able to gain expressed consent through a CEM. So, you will have to either be extremely careful about the communication method you use to get consent (to ensure it cannot be considered a CEM – see “The Tricky Bits” below) or will have to use another method. Whatever you choose, remember that you need proof

The Tricky Bits
There are a few pieces of the law that are a bit tricky. If these areas pertain to you and the links I’ll provide below don’t answer your questions, be sure to ask someone who can help you (e.g. your lawyer).

  • Memberships: The law still applies in the case of a membership to a club or organization, but there may be implied consent. There are conditions, however, on this consent so check the information carefully
  • Getting expressed consent on an existing list after July 1st 2014: The CRTC’s webpage on Canada’s Anti-Spam Legislation is excellent and talks about what constitutes a commercial electronic message (CEM). It is clear that there is some ambiguity in the definition and that each case will be looked at on a one-on-one basis, but there are some guidelines that you might find helpful

An Opportunity to Clean Up Our Lists
I have already received a few emails asking me to re-opt into lists that I’m a part of so those businesses comply with the new law. I’m expecting to receive many more in the coming weeks – especially after this newsletter goes out.

I have re-applied to some of the lists and chose to opt-out of a few others. Let’s take this as an opportunity to clean up our lists. It’s very frustrating to spend hours writing an email to only have a small percentage of your recipients open and read it. Why not send emails to people who really want to read them and will forward them or share them on social media?

So, if you ask people to re-opt in and they don’t  (be sure to give them a few opportunities to sign up – nobody remembers to do all their admin tasks all the time!), it’s okay. It’s better to have a clean list of interested participants.

More Information
There are a few reliable websites that give more information. I found the CRTC’s webpage the most useful, but I’m including a few others as well.

CRTC (Canadian Radio-television and Telecommunications Commission)
Fight Spam
The Canadian Chamber of Commerce