Email Marketing Law UpdateNuffer, Smith, Tucker Professional Development

July 1,2014

CAN-SPAM v CASL

CAN-SPAM Act

• A law that sets rules for commercial email, establishes requirements for commercial messages, gives recipients the right to stop receiving emails, and spells out tough penalties for violations (up to $16,000).

• Applies to more than just bulk email – covers all commercial messages defined as:

• Any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.

• No exception for B2B emails

CAN-SPAM Main Requirements

• Don’t use false or misleading header information• Don’t use deceptive subject lines• Identify the message as an ad• Tell recipients where you are located• Tell recipients how to opt out of receiving future

email from you• Honor opt-out requests promptly• Monitor what others are doing on your behalf

Does Client Email Fall Under CAN-SPAM?

How do I know if the CAN-SPAM Act covers email my business is sending?• What matters is the “primary purpose” of the

message. To determine the primary purpose, remember that an email can contain three different types of information:

• Commercial content – which advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose;

• Transactional or relationship content – which facilitates an already agreed-upon transaction or updates a customer about an ongoing transaction; and

• Other content – which is neither commercial nor transactional or relationship.

Transactional or Relationship Message

How do I know if what I’m sending is a transactional or relationships message?• The primary purpose of an email is transactional or

relationship if it consists only of content that:• facilitates or confirms a commercial transaction that the recipient

already has agreed to;• gives warranty, recall, safety, or security information about a product

or service;• gives information about a change in terms or features or account

balance information regarding a membership, subscription, account, loan or other ongoing commercial relationship;

• provides information about an employment relationship or employee benefits; or

• delivers goods or services as part of a transaction that the recipient already has agreed to.

Commercial Content

What if the message combines commercial content and transactional or relationship content?• It’s common for email sent by businesses to mix

commercial content and transactional or relationship content. When an email contains both kinds of content, the primary purpose of the message is the deciding factor.

Example A – Transactional/Relationship

TO: Jane SmithFR: XYZ DistributingRE: Your Account StatementWe shipped your order of 25,000 deluxe widgets to your Springfield warehouse on June 1st. We hope you received them in good working order. Please call our Customer Service Office at (877) 555-7726 if any widgets were damaged in transit. Per our contract, we must receive your payment of $1,000 by June 30th. If not, we will impose a 10% surcharge for late payment. If you have any questions, please contact our Accounts Receivable Department.Visit our website for our exciting new line of mini-widgets!

Example B - Commercial

TO: Jane SmithFR: XYZ DistributingRE: Your Account StatementWe offer a wide variety of widgets in the most popular designer colors and styles – all at low, low discount prices. Visit our website for our exciting new line of mini-widgets!Sizzling Summer Special: Order by June 30th and all waterproof commercial-grade super-widgets are 20% off. Show us a bid from one of our competitors and we’ll match it. XYZ Distributing will not be undersold.Your order has been filled and will be delivered on Friday, June 1st.

What if the message is both?

What if the message combines elements of both a commercial message and a message with content defined as "other"?• In that case, the primary purpose of the message is

commercial and the provisions of the CAN-SPAM Act apply if:• A recipient reasonably interpreting the subject line would likely conclude

that the message advertises or promotes a commercial product or service; and

• A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is to advertise or promote a product or service.

• Factors relevant to that interpretation include the location of the commercial content (for example, is it at the beginning of the message?); how much of the message is dedicated to commercial content; and how color, graphics, type size, style, etc., are used to highlight the commercial content.

CASL – Commercial Message

An electronic message that, having regard to the content of the message, hyperlinks to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that:a) offers to purchase, sell, barter or lease a product, goods, a

service, land or an interest or right in land;b) offers to provide a business, investment or gaming opportunity;c) advertises or promotes anything referred to in paragraph a) or b);

ord) promotes a person, including the public image of a person, as

being a person who does anything referred to in any of paragraphs a) to c), or who intends to do so.

CASL – Electronic Address & Message

• Electronic address used with the transmission of an electronic message to:

• An electronic mail account• An instant messaging account• A telephone account• Any similar account

• Electronic message means a message sent by any means of telecommunication, including a text, sound, voice or image message.

CASL - Consent

• Cannot send a message to an email address unless the receiver sent has consented the receiving it.

• Must have implied or express consent of each person receiving your email.

• Express consent: user must take a step to opt-in

• An electronic message that contains a request for consent to send a message (that is described as commercial message) is also considered to be commercial electronic message.

• CAN-SPAM only requires opt-out options

CASL – Express Consent

• Boxes cannot be pre-checked• Must track when express consent was received• If gaining consent by an email box, it must not be

pre-filled• Every address after July 1, 2014 must have some

form of consent

CASL – Implied Consent

• Sender has existing business or non-business relationship

• Receiver has caused their email address to be conspicuously published

• Receiver has disclosed their email address to the sender without indicating a wish not to received unsolicited commercial emails

• Add addresses collected previous to July 1, 2014 will have implied consent until July 1, 2017

CASL - Identification

• Each email must identify the sender and anyone they are sending on behalf of, including contact information for all involved.

• NST’s name, and client’s name and address should be included in the e-newsletter

• When sent on behalf of multiple persons, all persons must be identified.

• Don’t need to name the email service provider (GetResponse, BlueHornet, MailChimp, etc.)

• Valid mailing address must be included.• Address must be valid for at least 60 days after message is sent• PO Box addresses are acceptable

CASL - Unsubscribe

• CAN-SPAM doesn’t require an unsubscribe option for transactional (purchase confirmation) emails

• CASL require unsubscribe options for ALL emails• Enable the receiver to indicate, at no cost to them, the wish

to no longer receive any emails by:• The same electronic means by which the message was sent• Or any other electronic means that enable the person to indicate

the wish

– Specific an email address or link to a web page to which the indication to unsubscribe can be sent• Must be quick and easy

– User must be unsubscribed no later than 10 business days after the indication has been sent without any further action being required by requestor

CASL - Penalties

• Corporations can be fined up to $10 million Canadian

• Individuals can be fined up to $1 million Canadian• Corporations and individuals can also be sued by

users

CASL - Deadlines

• Every address obtained after July 1, 2014 must have express consent

• Every address obtained before July 1, 2017 must have implied consent.

• Implied consent will last until July 1, 2017 – then need express consent

• If you/organization already meet CASL guidelines, no need to re-permission

CASL – Compliance Checklist

Questions to ask:• Do all messages include an unsubscribe link?• Am I and anyone I am sending on behalf of

properly identified in my message?• Is the client’s address in the email?• Does the current sign up form fulfill express

consent?

Re-Permission Campaign Plan

• Send to all Canadian subscribers if express permission has not been previously documented

• Message in the voice and personality of the brand• Reference the CASL regulations and your desire to

maintain a relationship• Ask for express permission and drive to a compliant

page that allows the capture appropriately

Re-Permission Campaign Plan

• All electronic communications sent to Canada must have a mechanism to unsubscribe

• Unsubscribe functionality must be available on transactional communications

• On-site remediation of unsubscribe behavior from transactional communications may be possible

Important Steps for CASL

1. Understand the organization’s Canadian presence– Due diligence finding Canadian members

• Physical address• Email address - .ca

2. Need to have a permission form– Subscribe to newsletter check box and it cannot be pre-checked – user

must take action– No pre-filled forms– Need a time stamp on when express permission was received

3. Re-permission campaign– Send to all Canadian subscribers if express permission was not

previously documented– Create messaging and personality that matches your brand– Reference CASL regulations and your desire to maintain a relationship– Drive people to the compliance page

Important Steps for CASL

4. Transactional Email– Unsubscribe must be included in all transactional

communications– If user unsubscribes from transaction, user is not to receive

any further emails for that transaction• Out of stock - a gray area• Credit card decline - could be considered a new “transaction”

– On-site remediation from transactional communications may be possible.

– Have client’s legal team review and help create a plan

How NST can Help

• Provide overview of CASL with link to website• Make suggestion for how to:

• Ensure signup forms are compliant and how to update them• How to identify Canadian members• Outreach plan for Canadian members • Re-permission form• Adding NST information to e-newsletters• Adding client address to e-newsletters• Suggest client’s legal team review all procedures and

documents

CASL Recap

• Must have express consent for Canadian signups beginning July 1, 2014

• Implied consent is good until July 1, 2017• User must check a box (box cannot be pre-checked)

that they agree to receive email.• Sender and company sending on behalf of must be

named in emaila• Address must be included in each email (and good for

60 days after email was sent)