A reader writes: “I’ve read a lot about Canada’s Anti-Spam Legislation (CASL) in recent months. Is it fair to say this is mainly a concern for our IT department?”
Not exactly. CASL will definitely have an IT impact on any organization that sends commercial electronic messages (CEMs), but ongoing compliance is just as much a people-management issue as it is about using new systems to track email communications.
For those unfamiliar with the legislation, CASL—which is in force as of July 1, 2014—restricts businesses across Canada from sending emails, text or voice messages or images with the purpose of purchasing, selling, leasing or bartering a good, product, service or land, or to promote the person connected to those commercial activities. That is, unless a pre-existing relationship exists between your organization and the recipient, the CEM is intended to enforce a legal right such as a contract or to collect a debt, or is the result of a third-party referral. Another exception includes your response to a request for a quote or more information about your organization, to summarize just some of the Act’s numerous exemptions.
Companies must obtain and archive permission from individuals or organizations on their contact lists prior to the July 1 deadline to continue sending CEMs. Why? Because after that date, all such messages will be deemed spam by the Canadian Radio-Television and Telecommunications Commission (CRTC), the federal authority charged with enforcing the Act.
Failure to comply could result in monetary penalties of up to $10 million per violation for organizations, and up to $1 million per violation for individuals, including officers and directors of corporations who can be held personally liable for the corporation’s violations. The potential liability doesn’t end there. Under CASL, those officers and directors could face private rights of action as of July 1, 2017, meaning that any person affected by a violation of CASL can sue for actual and/or statutory damages.
CASL will not only force changes in your organization’s sales, marketing, IT and business development strategies, but in how you manage employees. Most Canadian SMEs lack formal processes or policies around sales and marketing activities. That means their people are encouraged (even required) to use any means necessary to sell their company’s goods or services. That usually involves sending out mass emails to a contact list or to targeted recipients. For any organization determined to comply with CASL, those tactics will no longer be an option unless permission has been obtained in advance.
These changes will require organizations such as yours to adjust how some employees work—particularly in companies with large sales forces or where client account management is a major focus. In other words, CASL is poised to create significant HR challenges for many Canadian SMEs.
With the clock ticking down on CASL’s arrival, the focus at this point should be on developing sustainable policies for managing CEM transmission, then enforcing them to protect your organization and owners from potentially costly liability. This preparation will also help your organization establish an effective due diligence defense if ever faced with a CASL complaint or investigation. The good news is, you can do it in a few simple steps:
1. Understand the legislation and your compliance gaps
As with any new legislation, you need to understand how it impacts your organization. CASL is no exception. Familiarize yourself with your compliance responsibilities under the Act—ideally in consultation with your lawyer and HR team—and determine which clauses are most likely to force a change in how you do business.
Then it’s time to identify compliance gaps with the legislation. But don’t panic—most SMEs will have to plug numerous gaps across their organizations, so you’re not alone. Carefully study your IT, sales and marketing processes and interview employees to map out their daily business practices. With this information in hand, you can begin taking steps towards full CASL compliance.
2. Seek express permission now
With that July 1 just a few days away, there’s simply no time to waste in obtaining consent from existing contacts. While you could use a customer relationship management platform to do the job, simple emails will also suffice. But remember—electronic messages indicating consent to receive further CEMs must be archived in the case of a challenge from the CRTC, another organization or consumer.
3. Update your policies
The only surefire way to comply with CASL and mitigate potential C-suite level liability is to draft comprehensive policies around the transmission of CEMs. That will literally involve prescribing how, when and to whom employees may send emails. But remember, these new procedures must be clear and simple to implement—or you face the risk of employee disengagement or non-compliance—and remember to include clear consequences for policy breaches.
4. Train your staff
The only way to successfully implement new policies and procedures across an SME is to provide extensive training to all employees—including managers. This should include the use of new software if your organization has introduced a CRM system to help it comply with CASL, as well as details on the legislation, its implications and how to flag areas of non-compliance. Once trained, employees should be required to indicate their understanding and agreement of these new policies in writing.
5. Develop compliance metrics
Employees accustomed to performing tasks a certain way for a long period of time are prone to reverting back to their old ways. By developing metrics to measure and monitor compliance on an ongoing basis, while also conducting regular compliance audits, you can help your organization stay on the right side of CASL.
While this legislation may appear onerous, think of it as an opportunity for your organization to map out and even improve its IT, sales, marketing and business development processes. That means you have a chance to not only become a more efficient and innovative company, but also a faster growing and more profitable one. Just don’t wait; time is very quickly running out.
Laura Williams is an employment lawyer and founder of Williams HR Law in Markham, Ont. She has more than 15 years experience in providing proactive solutions to employers aimed at reducing workplace exposures to liability and costs that result from ineffective and non-compliant workplace practices.
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What, if anything, has your business done to prepare for CASL? Share your experiences below.