The CASL Transition Ended on Saturday

What ended on Saturday

On Saturday, Canada Day, the three-year transition period in Canada's anti-spam law came to an end.

Since CASL took effect in July 2014, businesses could keep emailing people they had dealt with before then, as long as the relationship included email and nobody had asked them to stop.

That allowance is gone. Those addresses now need the same grounds as any other: express consent, or one of the law's forms of implied consent, most of which have a time limit.

Last month's news about the lawsuit provision left this date untouched. Read what follows as a plain summary of the rules, not as legal advice.

Where each address came from

Sorting starts with the source of each address, because the source decides what you can still send.

• Signed up with clear wording, and you can show when and how.
• Bought something from you in the last two years.
• Holds a membership or contract that is current or ended within two years.
• Enquired or asked for a quote within the past six months.
• Published a business address without refusing commercial email.
• Customers from before July 2014 with nothing more recent.
• Imported from somewhere, with no record of how.

The sixth is the group the transition protected, and the one that changed on Saturday. The seventh was never on firm ground.

What still works

Express consent does not expire. Someone who clearly agreed to receive your emails, and whose agreement you can show, can be emailed until they unsubscribe.

Recent purchases and enquiries carry implied consent on their usual clocks. So does a membership or service contract: for as long as it runs, and for two years after it ends.

Business contacts may have another ground. An address the person has published on a company website, with no note refusing commercial email, can receive messages relevant to their job. Keep a copy of where it was published.

It is the lapsed customers and the very old contacts, with none of these, who need a decision.

What no longer works

A customer who bought once in 2013 and never again was reachable under the transition. Now there is no purchase within two years and no express consent, so there is nothing to rely on.

The same goes for old enquiries, members who left years ago, and contacts carried over from an earlier business system.

Continuing to email them does not become safe because nobody has complained so far. Each message needs its grounds on the day it is sent.

Text messages too

CASL covers commercial electronic messages, not only email. Promotional texts sent to a mobile number need the same grounds.

Many businesses collected mobile numbers for appointment reminders years ago and later began sending offers to the same list. The reminders are not marketing. The offers are, and the transition that covered them has ended too.

Sort the text list by source exactly as you sort the email list.

A worked example

A family Christmas tree farm emails its list once a year, in mid-November, with opening day, the varieties and the hours. The list goes back more than ten years.

Its customers buy once a year, in December, so the two-year clock works differently than it does for a shop with weekly regulars.

A family that bought last December is covered for this November's email and next year's. A family whose last tree came in December 2015 is covered this November and not after.

Anyone whose last tree came in December 2014 or earlier is not covered at all.

Sorted that way, the families who stopped coming years ago, a good part of the list, came off the sending list this weekend.

November's email will carry an invitation to subscribe, worded for the families who last came in 2015, since it is the last email they can be sent without one.

The families no longer covered will hear about opening day in other ways: a public post on the farm's Facebook page, the sign at the gate, and a line on the website inviting anyone to join the list.

Reaching the old group without email

Emailing old contacts to ask whether they want to stay is ruled out, because CASL treats a consent request sent by email as a commercial email in itself.

Other channels remain open. A printed postcard or letter is not an electronic message, so it can invite past customers to sign up on your website.

So can a public post on your social media pages, a sign at the counter, or a word with a customer in person.

Wherever the invitation appears, the sign-up itself should happen on a form that names the business, says what the emails will contain, and mentions that people can unsubscribe at any time.

A list that keeps itself current

Sorting once is not enough, because implied consent keeps expiring. A customer covered today drops out two years after their last purchase.

Give each address three fields in your email service: the kind of consent, the date it began, and, where it is implied, the day it lapses.

Then save a filter that leaves out anyone past their date, and send every campaign to that filtered list. A short setup now saves sorting the whole list again next year.

Keep the evidence behind each source as well: the sign-up page as it looked, the cards, the order records.

What has not changed

Every commercial email must still name the sender and carry a working unsubscribe link, and the law allows at most ten business days to act on each opt-out.

Messages that are not marketing, such as receipts, booking confirmations and replies to questions, never relied on the transition, so they continue as before.

The counter-case

For some businesses Saturday changed little.

A business that started its list after July 2014, with a clear sign-up form, never relied on the transition. Neither did one whose list is almost entirely recent, repeat customers.

And a business that never sends marketing email or texts, only replies and receipts, has nothing to sort.

Everyone else should sort the list by source before the next send and stop mailing the addresses the law no longer covers.

Before the next send

1. Export the email and text lists with dates.
2. Sort each address by where it came from.
3. Remove contacts with no current grounds.
4. Add an expiry date to every implied consent.
5. Filter out expired addresses before every send.
6. Invite customers near their date to subscribe.
7. Use post and public pages for everyone else.

Step two is where every decision comes from. Until each address has a source, there is no way to know what the law allows you to send it.

The rest of the law, which still applies in full, is covered in CASL's lawsuit clause is suspended and the rest still applies.

Frequently asked questions

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