Are you following the email marketing rules? Ignorance of the anti-spam laws won’t get you off the hook! Here’s what you need to know BEFORE you send your email newsletter.
Email Marketing Rules
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We’ve all received spam in our inboxes and depending on your activity online, you could end up with a lot of it! Everything from African princes requesting funds to save their countries to glaring emails with ‘SALE! SALE! SALE!’ flashing across the top!
With this onslaught of unsolicited emails, many countries have caught up and established anti-spam legislation. The effectiveness of these are hit and miss: after all, it’s hard to deal with laws when the issues they’re addressing span the globe! That said, getting caught breaking these is, at best, damaging to your business and, at worst, costly.
The first thing to know about the anti-spam laws in Canada and the United States is that the Canadian laws are harsher in terms of penalties. With that in mind, let’s take a look at the email marketing rules and laws, at a high level, for both countries.
Anti-spam laws in Canada and the United States
Both countries developed and implemented laws to deal with the increasing amount of bulk/spam email that consumers were receiving. In Canada, it is called CASL—Canada’s Anti-Spam Law—and went into effect in 2014. In the US, it’s referred to as the CAN-SPAM Act—Controlling the Assault of Non-Solicited Pornographic and Marketing Act—and went into effect in 2003.
As you can see, the US was ahead of the game in preparing for the war on spam but there is an interesting and important difference between the two pieces of legislation, particularly for businesses that are going to send emails ‘cross-border’.
Opt-in or opt-out?
Canada’s CASL laws require that the consumer opt-in to receive emails from the business. That is, a person would have to clearly stipulate that they wished to receive emails from the company. If they have not expressly stipulated this, the business is considered to be spamming them (with an exception of implied consent, that we’ll get to later).
In the US, they use an opt-out approach, which means that the business can send emails until the consumer expressly opts-out of receiving them. As you can imagine, businesses prefer this method, as it is far less time consuming in that there is no process required for legitimizing their mailing list.
For American businesses wanting to send newsletters to Canadian consumers, however, they need to observe CASL’s opt-in system before sending out marketing materials via electronic means.
Stacie and I highly recommend ConvertKit. ConvertKit makes opting in legit with a two-step verification, so you KNOW that reader wants to be on your list. Here are 8 more reasons why ConvertKit is awesome.
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Exception to the rule: existing business relationship
There is one major exception to CASL’s rule of express consent and that is where an existing business relationship exists. If you as a business have already established a commercial relationship with a consumer, within a period of not more than two years, messages can be sent to the consumer with implied consent. So what’s a commercial relationship?
If you answer YES to any of the following questions, you may have an existing business relationship in which case you will be able to send CEMs for the period specified (either 2 years or six months following the last transaction date):
- Has the recipient made a purchase or lease of goods, services, land or interest in land within the two-year period immediately before the day on which the message was sent?
- Has the recipient accepted a business, investment or gaming opportunity offered by you within two years immediately before the day on which the message was sent?
- Has the recipient made an inquiry or application on any of the items above within the six month period immediately before the message was sent?
- Has the recipient entered into a written contract which is still in existence or expired within two years immediately before the day on which the message was sent?” (SOURCE)
Unsubscribe mechanisms and content requirements
Both CASL and the CAN-SPAM Act require that a clear unsubscribe (opt-out) method be available in every message. Both countries also require that the business act on any request to opt-out within ten business days of receipt.
Both sets of legislation also require that the sender provide contact information in every message. CAN-SPAM requires that a message include a postal address, while CASL requires that the message include the mailing address, and either a telephone number with active response voicemail or an email address or a web address.
The penalties for breaking the anti-spam laws in either country are a little different. In the US, the Federal Trade Commission would get involved in flagged cases to determine if criminal prosecution is warranted. This would be in cases where serious fraud has occurred. Either a state attorney general or an internet service provider could bring a civil action to receive financial damages. In Canada, the penalties are much higher and could potentially ruin a business: upwards of a million dollars for spamming an individual and ten million for spamming entities like businesses. It’s not worth it people!
Do many cases reach this level? No. But the CRTC (Canadian Radio-television and Telecommunications Commission) recently imposed a $15,000 penalty to a small business who sent unsolicited emails about their flyer printing business. 58 complaints were all it took for the CRTC to investigate! So being small doesn’t mean you would never be noticed! Read the laws and learn what you can and cannot do when you’re sending email newsletters! Better to be safe than sorry!