In my last post I described my use of email to periodically market my freelancing services. I said that I was looking into further expanding its use and would report back. My investigation could not have been more timely.
If you are contemplating the use of email for self-marketing you should make yourself thoroughly familiar with the new Canadian Anti-Spam Legislation (CASL) which begins to take effect July 1st, 2014.
Ideally you might want to consult a lawyer for advice pertaining to your own particular circumstances.
What follows is what I make of it so far in very general terms based upon my specific email marketing experience.
Like any new legislation it is composed of densely impenetrable, highly convoluted legalese which no doubt will be open to varying interpretations and multiple legal challenges in future. I’m not here to discuss if it is good or bad, or if it does the job well or screws things up worse (although my guess is that it is going to create much more chaos before it solves anything). The simple fact is that it’s going to become law very soon. I’m here to try to figure out how it impacts on me and I thought I’d share my preliminary thoughts with you today.
CASL appears to be some pretty serious legislation which threatens to fine individuals up to a million dollars per spam violation. Companies up to $10 million each. Why so much for sending out spam? Well, in fact the legislation covers more than just spam, it also covers downloadable malware, spyware and viruses. These pose a much more serious security risk to end users. So how much of CASL will end up directly relevant to individual freelancers is questionable. I’d posit that in any case it is best to familiarize yourself with it and plan to comply to the best of your ability to avoid any possible future legal hassles. Better safe than sorry.
So what does CASL include of concern to us?
It covers any CEM or “commercial electronic message”.
What is a CEM? A CEM is any electronic message that “encourages participation in a commercial activity” whether or not there is any “expectation of profit”. So any use of email (as well as any other electronic messaging medium) for self-marketing most certainly looks like it will be included.
Are there exemptions to CASL rules?
Of course there are exemptions. You don’t think legislation as Byzantine as this wouldn’t have inexplicable exemptions, do you? Among CEMs not covered by CASL appear to be
* CEMs soliciting funds from candidates for public office and political parties. (Odd how they always manage to exempt themselves);
* Ditto from registered charities;
* CEMS sent within families. (Like you send marketing emails to your spouse and siblings?); and
* Specific one time inquiries to recipients relating directly to their business activities. (Whew! This should hopefully cover specific freelancer’s one time “cold” inquiry emails).
Got that? Exhausted already? I know I am. But we’ve only just begun…
OK, so, to recap so far (assuming you’re still playing along at home and haven’t dozed off): It looks like I’m covered sending out single one time inquiry or pitch emails. What feels more problematic is if I plan to put old or new potential clients on any mailing list for ongoing marketing updates. Those emails may constitute CEMs covered under CASL. In which case – to be fully compliant within the new legislation – I’d better be sure I have some kind of consent to send them.
This seems to be one of the biggest thrusts of this new legislation. You will no longer be able to send unsolicited CEMS without having first received consent from your recipients to do so. (But really – how do you contact them to get permission to contact them if you can’t contact them without first getting permission to contact them? Ouch. My head is beginning to hurt.)
Consent can be
* in writing or
* provided verbally (assuming you can prove it).
If verbal consent is given, the government actually suggests that it be given in front of a third party or that you have a recording of it (should you need to prove it later). Oy. My suggestion – get it in writing.
But wait, it gets better.
There’s also something called “implied consent”. Still with me? Hang on.
* This is very important for freelancers. If you already have a relationship with a business, then that confers implied consent. (Although it is most probably in your best interest to get it reconfirmed in writing within the next 36 months.) Whew again! So that means I should be covered sending out my marketing emails to preexisting clients just to keep in touch.
* Here is a biggie for freelancers who want to contact or keep in touch with potential new employers “cold”: If a company “conspicuously” publishes their contact information (for example, on their website) without saying that they don’t want to receive CEMs, then that too is considered to imply consent. Your CEM must deal with subjects of interest or relevance to the recipient. (Which it would, of course, otherwise why on earth are you sending it?).
* It’s also deemed to be implied consent if the recipient “discloses” their email address to you without explicitly telling you not to use it for your marketing purposes. Your CEM’s content must (again) always be of relevance or of interest to them. (Does this mean it’s implied consent if they show you a tattoo which includes their email address? Guess so.)
It’s a little vague to me what “discloses” fully covers. I expect this last point in particular may one day be open to legal challenge. (There are times I wish I had taken up law. This is one of them. I’d become so rich thanks to legislation like CASL.) So in future if in doubt I’ll always try to get explicit permission to keep in touch/follow up with emails.
How to do this could include…
* During any phone calls I will always ask for consent “to keep in touch” via email with possible new clients (see my last post);
* Using contact forms online on a potential employer’s site;
* During any personal contact (meetings, networking, etc.) I may request contact info verbally and write it down or ask for/exchange business cards for the express purpose of keeping in touch and future emailing.
But wait! A further clarification: If I am casually given contact information without them expressing specific explicit consent – but they don’t tell me not to send stuff – then that seems to be implied consent. (It was “disclosed,” remember?) If I find their contact info in the garbage, it isn’t. (But if I’m looking for contact information in the garbage I think I should also conclude that the meeting didn’t go so well!)
OK, I think I got all that. Hope you did too. And so before my head explodes, what else is required under CASL?
You must clearly and fully identify yourself
CASL requires that you will provide your name and contact information, namely: a snailmail address as well as an email address or phone number where you can be reached. In the event that you work from home, and wish to protect your home address, a post office box or business snailmail address should suffice.
Ability to unsubscribe
Under CASL all CEMs must allow recipients to choose to unsubscribe from your CEMs using a method that is “simple, quick and easy”. It must be clearly identifiable and referenced in each CEM.
Use of third party blasts
If you plan to use an email blast service to send out multiple mailings these new CASL regs seem to be much more relevant than to my idiosyncratic system outlined my my last post. (I’m still planning to comply to the best of my ability anyway.) If they screw up, it will be you who may be held legally responsible. So don’t assume that a third party is in complete compliance unless you have thoroughly researched them. Your name and your reputation are on the line.
When does all this go down?
There is a graduated three year deployment of the full legislation but it is best to begin compliance now when planning/creating any new self-marketing emails.
CASL is rather complicated legislation with many aspects open to varying interpretations. It will take years to work out all its bugs and kinks. If you plan to do any kind of email self-marketing it would be beneficial for you to go online right away and review the legislation to see how it may impact on you.
For most of us, voluntarily complying with its essential points (obtaining consent, fully identifying ourselves, and allowing for easy opting out) seems like common sense and basic good manners with which to conduct all future electronic business communications.
This post constitutes my best preliminary understanding of this new legislation as it relates to my own email self-marketing. If you are a lawyer and wish to shed further light on the subject, please feel free to get in touch and let us know. Indeed, consider this explicit consent to do so.
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