THE ANTI-SPAM VORTEX IS NOW UPON US. MAKE SURE YOU’VE TAKEN STEPS TO AVOID THE POTENTIAL (AND VERY COSTLY) PITFALLS
How quickly time flies! It was just a few short months ago (in the April 2014 edition of Canadian auto dealer) that we broached the subject of Canada’s Anti-Spam Legislation (CASL) and what it means for your dealership. We discussed how you can prepare your business for the inevitability of CASL and reviewed Computer Electronic Messages (CEMs), CASL’s phased implementation and steep non-compliance penalties. Well, the world of CASL is upon us and the digital marketing communication age as we know it has changed. This article highlights a few of CASL’s features.
Game Changer
As of July 1, 2014, CASL is in effect. And, if you think it’s a law only targeting spammers, identity thieves and phishers, you need to continue reading. Even if you are aware of what CASL is and what it means, this article will likely give you further insight into the changes that have just occurred. While the new law does have the noble intention of protecting Canadians from electronic predators, it also has broader implications on how general businesses, including dealerships, communicate electronically with consumers. We’ve all been following email best practices, but this new law is a game changer.
Private Right of Action Delay
If your dealership has not started the preparedness process yet, it’s still not too late, but every day you delay poses risks for penalties as a result of non-compliance. While most aspects of the law are in effect as of July 1, there are a couple areas of the law that take effect at a later date:
• Unsolicited installation of computer programs and software (January 15, 2015);
• Private Right of Action (July 1, 2017).
The important one to note is the Private Right of Action. The implementation delay of three years gives you some protection from anyone affected by an act or omission that is contrary to CASL and who may want to take civil action, including a class action, against you for actual and statutory damages. However, it doesn’t mean you can simply ease into compliance or wait another three years. What it DOES mean is that, for the time being, government entities will be the ones to enforce CASL and punish offenders. This indicates that their primary focus is pursuing the “spammers” — the true transgressors. Legitimate businesses like yours that are trying to comply may be afforded some leniency — although at present, that is hard to predict. The pressure is on for companies to be fully compliant today.
Consent
Okay, so what do I mean by compliant? Well there are two main requirements to CASL that you should thoroughly understand:
• Electronic Messaging with Implied Consent;
• Electronic Messaging with Express Consent.
Implied Consent is the more ambiguous of the two and certainly has some subjectivity to it when it comes to the scenarios you are encountering at the dealership. The key to Implied Consent is it gives you the right to electronically communicate with the customer because of your existing relationship with them. An “existing business relationship” which is exhaustively defined in CASL exists when the sender and recipient have engaged in business together within the previous two years from the date the message was sent. Essentially, this means that if the customer has been in the dealership for sales, service or parts and has purchased goods, services or entered into a written contract with your dealership on any of these levels, you have their Implied Consent.
This would allow you to electronically communicate with them for the next two years, unless they notify you they don’t wish to receive your CEMS — an action referred to as “opting out.” If they buy again within that time period, the clock resets and you have another two years to electronically communicate with them. Otherwise, after those two years expire, you must have their express consent prior to initiating electronic communication (subject to the transitional provision discussed below).
A secondary form of “existing business relationship” is when a prospect or customer has made an inquiry (i.e. submitted a lead) to your dealership in the past six months. When this event occurs, the law states you have six months to send electronic messages without obtaining express consent.
Express Consent is the gold standard within CASL because it takes away the ambiguity, is very explicit when captured and, most importantly, greatly reduces the legal interpretation or risk of challenge. The key to Express Consent is that it does not expire until the recipient withdraws consent — i.e. opts out. Therefore, once you get it, it lasts for life unless the customer revokes it.
Now, getting Express Consent and keeping it is what takes work.
There are two main ways you should be getting Express Consent:
• Mailing list form on your website;
• A confirmation link in an email.
When obtaining Express Consent, there are specific CASL rules you must follow to ensure consent is valid:
• Clearly describe the purpose for which consent is being sought;
• Identify the dealership seeking the consent (or name of person, if different);
• Provide the dealership’s contact information;
• Indicate that the recipient can with draw consent and ensure the unsubscribe mechanism is clear, valid for at least 60 days after the CEM is sent and must be acted on no later than 10 business days after they unsubscribe;
• None of the actions (check boxes) can be pre-checked. In other words, the recipient must take active steps to consent i.e. opt-in;
• Document and record all of the actions!
Breathing Room
To help ease your transition into this new electronic communication world, Section 66 of CASL has given us some breathing room (a transitional period) for situations where there is implied consent for an existing business relationship. Therefore, any electronic communication that you send to your customers prior to July 1, 2014 (thus establishing an “existing business relationship”) will extend the “implied consent” to 36 months (July 1, 2017). This is the time period you have before you need to obtain express consent (instead of the applicable “implied consent” rules of two years or six months after July 1, 2014), as long as you have been communicating with them by CEM. In other words, you can communicate freely with these folks until the Implied Consent time runs out or they’ve unsubscribed. This allows you the time to send CEMs and request express consent to become compliant with CASL.
Document Your Efforts
Hopefully, you haven’t been thrown for a loop if you’re hearing this for the first time. Most of you have probably taken some steps towards CASL compliance; perhaps your Lead Management/CRM vendor, website provider, marketing or legal advisor has provided expert guidance. In any case, you should assign a CASL lead at your dealership to track your progress and ensure you are on point with this new legislation.
Wherever your status is on CASL’s preparedness continuum, if you are in a senior position at your dealership your role is to keep a sharp eye on progress and exercise diligence to maintain compliance. Document everything you do. If for some reason you should mishandle an electronic communication — your documentation and due-diligence effort will help you in your defence and hopefully keep you from paying the potential millions of dollars in fines. I know it sounds overwhelming at the moment, but with the right advice and focus it too will become second nature and the automotive digital marketing world will feel normal again.
