Canada’s Anti-Spam Legislation (CASL) is only days away now from its July 1 official enforcement deadline and many in the business world are hustling to get into compliance ahead of then.
Canadians are likely getting a flurry of consent-seeking emails in their inbox ahead of July 1 as emailer marketers seek the coveted “express consent” permission they will need to continue sending those emails in the future. Under CASL, express consent – when an individual clearly says they want to be sent email from your business – does not expire until the person opts-out of an email list. Implicit consent, which is obtained when a person has some existing business relationship with a company, expires after two years.
Some email marketers and the services and applications that cater to them have been talking about how they’ve been prepared for CASL for years. Thanks to their already-implemented system of requiring a double opt-in process to be added to an e-mail list, they’ve captured the express consent of their customers already. But as Randall Craig astutely points out on his blog, double opt-in and express consent are mutually exclusive from each other and just because you’ve done one, doesn’t mean you also have the other.
Definitions are helpful in understanding the difference. A double opt-in process simply means you confirm with the same person twice before adding them to an email list. So if that person clicks a web link to opt-in to an email list, they are then sent an email asking if that’s really what they intended to do.
First of all, express consent doesn’t require double opt-in. Someone can give express consent at a trade show by filling out a paper form, or verbally over the telephone and no email confirmation is required. A company can just input it into their database and make sure they record the proof of express consent for compliance purposes.
Also, just because you’ve done a double opt-in in the past doesn’t mean you’ve covered for express consent under CASL. Craig gives some examples of when it won’t apply:
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A subscriber had double opted-in, but you later changed your email system. You transferred all of the “old” email addresses into the new system, but the proof of double opt-in stayed in the old system – which is no longer available.
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A subscriber had double opted-in a number of years ago where they had agreed to receive X. Yet today, you are sending them Y – and in the future, you may wish to send them Z. You do not have Express Consent for Y or Z – even though your system shows them as having double opted-in.
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A subscriber had double opted-in a number of years ago, but since the web form has changed many times over the years, you don’t have proof of what they had actually agreed to when they originally signed. You may indeed have Express Consent, but you can’t prove it. (If this is the case, here is how to sleuth your way to uncovering “old” versions of your site, and proof.)
If you’re looking for ways to get ready for CASL, check out our series of PageBooks on the topic. Starts with The ABCs of CASL: Introduction to Canada’s Anti-Spam Law.