5 min read
Prepare for CASL: CASL Compliance Checklist
With CASL coming into effect in just a few weeks, it's best to know that your messages are compliant with the legislation. What's the quickest, easiest way to make sure specific elements are in place? A checklist, of course! Our CASL checklist will ensure that your new or existing projects within SimplyCast 360 (and in general) are compliant and acceptable within the requirements of Canada's Anti-Spam Legislation. Please note, however, that this is not legal advice, and you should always consult a lawyer if you are unsure. For more information, you can sign up for one of our daily Monday to Friday webinars on CASL compliance. Webinars take place at 1:00 p.m. EST. You can also contact our customer support staff for assistance.
1. Does CASL apply to my message? Is it a commercial electronic message (CEM)?
Is my message considered commercial?
An electronic message is commercial if it encourages any kind of participation in commercial activities, such as promoting a business, investment or opportunity. Promoting a person who does one or more of those things is also considered a CEM.
Is the message being sent to an electronic address?
For the purposes of CASL, an electronic address is considered to be a phone number, email address or social media account. Instant messaging accounts are also covered, although audio recordings and faxes are not covered, as those are covered in an entirely separate legislation.
If the answer to either of those questions is yes, then CASL applies to your message.
2. Is my message exempt from CASL?
- Am I sending to a family member or someone I know personally?
- Is my message going to someone who has engaged my business, either by inquiry or related application?
- Is this being sent to another employee, representative, consultant or franchisee of your company, and is it relevant to their position and activities or the organization's?
- Is it being sent to an employee, rep, consultant or franchisee of another company, where your organizations have a connection and the message is relevant to the individual's position and activities or the organization's position and activities?
- Is this a reply to a request, inquiry or complaint, or otherwise solicited by the recipient?
- Are you satisfying a legal or juridical obligation with this message?
- Are you providing notice of an existing or pending right, legal obligation, court order, judgement or tariff?
- Are you enforcing a right, legal obligation, court order, judgement or tariff?
- Have you sent this message with express consent, as well as a conspicuous unsubscribe mechanism and valid identifying information in the message?
- Is the message being sent to a limited-access account to which messages can only be sent by the person who provides the account to the recipient?
- Is the message being sent with reasonable belief that the message will be accessed in a foreign state that is listed in the schedule to the regulations and conforms to the anti-spam law of that state?
- Is the message being sent by or on behalf of a registered charity for the primary purpose of raising funds for the charity?
- Is the message being sent by or on behalf of a political candidate for publicly elected office for the primary purpose of soliciting contributions?
If the answer to any of these queries is yes, then you are safe. Your message is exempt from CASL.
3. Is the message based on a referral? One message can be sent based on a referral without consent if the following requirements are adhered to:
- Has the sender disclosed in the message the ordinary or full name of the person who made the referral?
- Does the individual doing the referring have a family, personal or existing business relationship with both sender and recipient?
If the answer to either of those is no, it's probably best to not take the referral. If both are yes, skip to step 7 of this checklist.
4. Is the message excluded from requiring consent pursuant to subsection 6 of CASL?
- Does the message provide a quote or estimate sent in reply to a request for one?
- Does it facilitate, complete or confirm a commercial transaction previously agreed to by the recipient?
- Are you providing information pertaining to a warranty, recall, safety or security issue related to products purchased or used by the recipient?
- Are you providing information about the ongoing use or purchase or otherwise discussing a subscription, membership, account, loan or other ongoing relationship?
- Do you provide information about employment relationships or a related benefit plan in the message?
- Does the message deliver goods or services, including project updates or upgrades?
If the answer to any of these is yes, then your message is excluded from requiring consent.
5. Can consent be implied?
Do you have an existing business relationship?
- The recipient has purchased from you, accepted a business opportunity, or bartered with the sender in the last 24 months
- The recipient has been party to a written contract with the sender in the past 24 months
- The recipient has inquired about any of the options in the first question
Do you have an existing non-business relationship?
- Has the recipient made a donation to, volunteered for, or attended a meeting organized by the sending party in the past 24 months, and is the sender a registered charity or political party or organization? Sender may also be a political candidate for publicly elected office
- Has the recipient held membership in the past 24 months in the sender organization, where the sender is a club, association, or voluntary organization?
- Is the recipient's electronic address (see above) conspicuously published and not accompanied by a statement that they do not wish to receive unsolicited messages, and the message is related to a professional or official capacity of the recipient?
- Has the recipient disclosed their address to the sender without indicating a wish not to receive unsolicited messages, and the message is related to the professional or official capacity of the recipient?
If any of these can be answered with yes, then consent may be implied. If none of these apply, then express consent is required.
6. Express Consent - You have to do ALL of these to obtain express consent:
- Have you clearly and simply described the purpose of your obtaining consent?
- Have you provided the name of the person seeking consent?
- If consent is sought on behalf of another person, have you provided the name of that person, and indicated which person is seeking, and on whose behalf? (check if not applicable)
- If the identity of the person on whose behalf you seek consent is unknown, have you described to the best of your ability on whose behalf you seek consent? (check if not applicable)
- Have you provided the mailing address, and any one of a telephone number, email address, or web address of the person seeking consent or the person on whose behalf consent is sought?
- Have you informed the recipient that they can unsubscribe at any time?
- Have you taken steps to ensure that the process for obtaining consent qualifies as express consent?
- Have you taken steps to ensure that evidence of the express consent is retained?
If the answer to ALL of these is yes, you're in the clear. You have express consent, and you may send the messages that were consented to, but only those messages. Express consent does not broadly apply to all messages.
7. Requirements when sending a CEM - A non-exempt CEM message must meet ALL of the following requirements:
Does your message contain the necessary identifying information?
- The name of the sender
- If the message is sent on behalf of another, the name of that person as well. Indicate who is the sender and on whose behalf they are sending (check if not applicable)
- The mailing address, and any one of a telephone number, email address, or web address of the person seeking consent or the person on whose behalf consent is sought (if different)
Do you have an unsubscribe mechanism?
- Allows the recipient to unsubscribe from receiving any further messages either via the same method or, where not practicable, by another electronic means at no additional cost
- Is able to be easily performed (a best practice is to have as little action needed as possible)
- Is valid for a minimum of 60 days after the message is sent
- Takes effect within 10 business days (a best practice is having the unsubscribe take effect immediately)
If the answers to both of these are yes, then your message is CASL compliant. This checklist should assist you in making sure that any electronic message sent over any medium are compliant. There are, however, some unique stipulations for SMS messages. We want to be sure that our customers are as safe and compliant as possible. We already insert an unsubscribe option in each email that is sent using SimplyCast. We also allow for suppression lists in our campaigns.
For more information, sign up for one of our daily free interactive CASL webinars.