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New Legislation Could Be Costly for Online Merchants Everywhere

New legislation enacted in Canada has the potential to cost businesses everywhere millions of dollars, and online merchants should beware.

What are the penalties for committing a violation under CASL?

If you commit a violation under any of sections 6 to 9 of CASL, then you may be required to pay an administrative monetary penalty (AMP). The maximum amount of an AMP, per violation, for an individual is $1 million, and for a business, it is $10 million. CASL sets out a list of factors considered in the determination the amount of the AMP.
– from the Canada Anti-Spam Legislation FAQ.

Though some provisions of Canada’s Anti-Spam Legislation (CASL) have been in effect for a few years, while other take hold in 2015 or later, those regarding commercial electronic messages (CEM) became active on July 1, 2014. Though the United States has had similar laws in effect thanks to the CAN-SPAM Act of 2003, the American Bar Association said in early 2014 the new Canadian law “is the toughest anti-spam law in the world.”

That report noted the essential difference between the American and Canadian laws. While the CAN-SPAM Act makes an “opt-out” model the method of escaping unwanted messages, the CASL will operate on an “opt-in” basis for CEM.

To help better inform our readers about CASL, EcommerceBytes.com spoke with Bob Sybydlo, Director, Market Intelligence & Deliverability at email marketing platform Yesmail Interactive for some additional insights into this legislation.

EcommerceBytes.com: In what ways does Yesmail see CASL affecting smaller ecommerce sellers whose newsletter enrollments may consist of a simple “signup” form or popup on their websites? Are they sufficient to satisfy the CASL consent / identification information / unsubscribe mechanism requirements for commercial electronic messages?

Bob Sybydlo: Smaller ecommerce sellers will be affected in the same way as other larger retailers. Anyone who is sending commercial electronic messages (CEM) to or from Canada must have consent from the recipient.

If you send electronic messages and are engaged in commercial activity, CASL applies to you. Yes, signup forms satisfy CASL consent requirements. CASL defines clear consent as the email recipient either checking a box or manually inputting their email address into a field on a form that says they agree to receive commercial electronic messages.

EcommerceBytes.com: What kind of changes will Canadian customers see in the email marketing they initially receive as CASL takes effect? Will they be prompted to take steps to demonstrate they have provided consent to continue receiving marketing messages?

Bob Sybydlo: CASL does not require any immediate action on the consumer end.

Leading up to July 1, many Canadian customers received messages from brands asking them to agree to continue receiving emails from them. Many businesses have offered incentives such as discounts and free appetizers for their consent.

EcommerceBytes.com: The opt-in model demonstrates a great protection benefit for the online consumer. In what ways will CASL’s opt-in model benefit ecommerce sellers?

Bob Sybydlo: Stricter opt-in requirements could lead to smaller but more effective marketing lists. This is a classic quality over quantity situation. It’s better to reach fewer, more responsive customers than more expansive lists.

EcommerceBytes.com: What steps has Yesmail taken to ensure their list marketing customers will be in compliance in CASL as it goes into effect?

Bob Sybydlo: We’ve made our clients aware of the impact of CASL on them and worked with them to develop plans of action. Generally speaking, here are three steps all marketers should take to ensure they’re in compliance:

1) Identify Canadian consumers within your database. Don’t assume that simply deleting all the .ca addresses will be sufficient. For example, Gmail is a universal ISP. Besides, you still want to reach these consumers; you just need to ask their permission.

2) Prioritize recipients by engagement. Your top priority should be the most engaged customers. You’ll want to reconfirm their consent first.

3) Make a plan of action and proceed. Consider creating a new engagement campaign to reconfirm consent.

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David A Utter
David A Utter
David A. Utter is a freelance writer based in Lexington, KY. He has covered technology topics from search to security to online business and has been quoted in places like ZDNet and BusinessWeek. He considers his appearance on NPR's "All Things Considered" with long-time host Robert Siegel a delightful highlight. You can find him on Twitter @davidautter and on LinkedIn.