Email Marketing Canada Bill C-28

If you have done any email marketing, it’s important to know about a new law [Bill  C-28 Fighting Internet (and wireless) Spam Act (FISA)] that will impact anyone who sends emails to consumers in Canada. Yes, that’s right even if you’re in the USA, you need to be aware of the law if your email list includes Canadians. If you are in the USA, or sending to US customers, (and you are not aware) you already have some legislation you need to follow.  It is commonly known as the CAN-SPAM Act. If you follow the CAN-SPAM Act you will be okay for the most part, but more on that later. These are the basics on the CAN-SPAM Act:

  1. Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
  2. Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.
  3. Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
  4. Tell recipients where you’re located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
  5. Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.
  6. Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.
  7. Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.

You can also get a handy guide from the US Government for your business to learn more about compliance.

Following the above rules is a good start, because it’s about respecting your customers. Nevertheless, the Canadian law is tougher, and comes with significant fines, as the Canada Anti-Spam Legislation Microsite points out: “The CRTC will have a number of compliance tools; one such being administrative monetary penalties (AMPs). The maximum AMP is $1 million per violation for an individual and $10 million per violation for entities, such as corporations.”

So what are some of the changes/rules do you need to be aware of for Canada’s Anti Spam Law and how does it differ from CAN-SPAM?

  • CAN-SPAM applies only to emails, C-28 also applies to SMS, instant Messaging (iM), spyware, Malware, phishing, pharming and social networks
  • CAN-SPAM relies on opt-out consent, C-28 relies on express consent, also known as double-opt in, with narrow exceptions. In circumstances with implied consent, this lasts for two year.
  • CAN-SPAM applies only if “primary purpose” is commercial, C-28 applies if any content is commercial
Other things to note:
  • Unsubscribe links must stay active for 60 and unsubscribe requests must be honored within 10 days.
  • There is a transitional or “grandfather” clause of 36-months after the law comes into effect,for existing business relationships, because it is undertood that some small business and not-for-profit organizations do not have the technological sophistication to automate their email lists, for example.
  • The government of Canada is not exempting surveys and market research
  • The legislation does not apply to non-commercial activity. Political parties and charities that engage Canadians through email are not subject to the legislation if these communications do not involve selling or promoting a product.
  • If an email is being sent on someone’s behalf other than the sender, the name of that person needs to be included.
Some  good resources to review:

Also note, report Email Spam will also be much easier for consumers in Canada, with the creation of  Email Spam Reporting Centre. I highly recommend if you are uncertain if you are in compliance, to seek the advice of a lawyer. We have provided this information only as a service to our readers, but we highly recommend that they read the full law Bill C-28  as well. Another tip, if you decide to outsource your sending practices, make sure you hire a legitimate e-mail marketing company that won’t rent lists or flood inboxes. Choosing the wrong company can put your business at risk for major fines, ignorance is not a defense.

Adrian Speyer

About The Author: Adrian has over 12 years experience in Digital Marketing and Analytics. He currently works as a Marketing Manager at Vanilla Forums, a modern forum software platform that allows clients to connect and engage their communities and customers. He lives and works in Montreal.

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