Canada’s Anti-Spam Legislation: Consent and Burden of Proof

So far in our series about Canada’s Anti-Spam Legislation (CASL) we have covered the basics and commercial electronic messages. In this post we will cover the different types of consent and the burden of proof.

Consent = Permission

There are two different types of consent that apply to CASL, express and implied. Express consent means an individual must take affirmative action to “opt-in” to your list willingly. Implied consent is when a relationship exists, but the recipient is added to your list without any affirmative action.

With both types of consent there a is “burden of proof” that is required. This means that it is your responsibility to track, record, and document the information necessary to prove that you have consent to be contacting that person. Best practices include ensuring that all records of your compliance procedures and policies are maintained, and that proof of consent is documented and tracked. This information may support a due diligence defense at a later point in time if your firm is ever called into question.

So let’s see this in action….

EXPRESS CONSENT

Jeff's Business Card

You collect someone’s business card and after meeting them send an email to confirm that you met them and they have requested more information or to be added to a list. This allows you to have the necessary information needed for the burden of proof.

Filled out form

 

Someone fills out a form on your website with the intent of being placed on your list. A confirmation email would then be sent which requires a recipient to click a link to confirm they wish to be placed on the list. When they click the link, the date/time and IP stamp should be recorded.

Phone

A person gives you their email address over the phone with the intent of being placed on your list. The same process of sending a confirmation email applies, but express consent could be proven if you recorded the conversation for each recipient.

IMPLIED CONSENT

Interest

If someone expresses interest in your business as part of the sales process or enters their email address on your website to download educational material, they are to be considered “prospects” and implied consent is given to send commercial electronic messages for a period of 6 months only.

 

 

 

 

Checkmark

If a recipient is added automatically or is required to un-check a box to opt-out during a process, this method is considered implied and not express consent under CASL. As a best practice this should be avoided anyways as it will typically generate a large volume of emails flagged as spam which negatively affects your reputation as a sender. In order for it to be express consent, a recipient must go through an opt-in mechanism, as opposed to opt-out. The end-user must take a positive action to indicate their consent.

Check back as our next post will cover the fine print of CASL and processes that can be used during the three-year transition period in case you are not going to meet the July 1st deadline!

There are Only 33 More Days Until December 1st: Holiday Cards Part III

Did you know there are only 33 more days until the first of December? No it is not a trick (and probably not a treat) but with Halloween this week we thought it would be a great time to check-in on your holiday card progress.

If you have not already started it is not too late. To help you get an idea of where you should be at in the process, we have come up with a suggested timeline below.

September: Project Kick-Off

  • Identify your objective: is your card just to send warm wishes or is there another motive such as contributing to a charity, launch a marketing campaign, or to clean-up your contact information in your database
  • Decide what type of card you will do: physical or e-card or a combination of both
  • Determine timing: based on the type of card you do, you will need to think through the delivery date and create your project plan. This will also affect your messaging such as Happy Holidays v. Happy New Year
  • Discuss distribution: who receives the card and who the card should come from
  • Inform employees about the project: ask them to compile their list of recipients, let them know how you will be using the information, and inform them of deadlines. If doing a physical card, let them know how the cards will be distributed for them to sign
  • Select the vendor/designer: choose who will create the card and discuss concepts and copy
  • Prep other staff or departments: you will want to prep departments, such as IT if there is a need to host a video on a server or prep assistants who will help with list generation, and inform them of your timeline

October: Development

  • Determine additional needs: for example if you want recipients to select a charity from a list, you will need to create a survey. If you’re giving a contribution based on the number of new “likes” on Facebook someone will be responsible for tracking the metrics. You will also need to determine how your firm will handle bounce backs or returned mail, as well as how you will track success (open and click-through rates, interaction with the card)
  • Test the different components of the e-card: if there is built-in functionality like “replay” for video or links to other pages you will need to test the functionality to ensure it work properly
  • Merge and clean lists: your lists should be at about 80% completion
  • Approvals: approve your final card concept
  • Identify quantity: the amount of cards and envelopes needed for a physical mailing

November: Execution

  • Completion: your e-card should be completed and if you’re doing printed cards you should have them in-hand
  • Final version of mailing list(s): should be completed within the first week of November
  • Signing process kicked-off: this should happen around the second week of November and signed cards should be obtained by the last week of November (2 week window for signing)
  • Other marketing: at this point you should consider other ways you will promote and distribute your hard work. Some ideas would be to post the card on your website, tweet it, Facebook about it, and submit to holiday card contests
  • Additional needs: your process and expectations should be established

December: Completion

  • Physical cards mailed: first week of December
  • Complete e-mailing: preferably in early December
  • Last-minute requests for additional cards: take care of last-minute request or provide employees with the tools they need to execute themselves (such as the OFT version of the e-card they can customize and send on their own)
  • Execute other marketing initiatives: promote your card in other channels
  • Track the card: determine success by monitoring bounce backs, returned mail, and click-throughs

This is only a suggested timeline to help guide the thought about what needs to be executed on. Depending on the complexity of the firm it could take more or less time to complete. No matter the length of the process there is one last step that is often overlooked… celebrate!

Celebrate the project completion. It is a large undertaking and requires a lot of coordination. Enjoy the success with your team, thank those who helped with the execution such as the IT department and the assistants, and make sure to share the news with the entire firm. Send out an internal memo with the card and share tracking numbers or feedback that you have received.

Let us know what you think… what other steps does your firm build in and when do you start your holiday card process?

Holiday Cards Part II: E-Cards

With today’s technology more and more firms are straying away from physical holiday cards and opting to go with e-Cards. There are a lot of marketing and business development benefits for choosing to go with an e-card. Below are four considerations and advantages to think through while working on your holiday cards this season:
Bar GraphTracking    
By sending an e-card your firm can identify who has received a card and what action they took. The number of people who opened the card can be tracked identifying if the e-card was successful and worth the time put into the project. Marketing and business development initiatives could be launched and the click-throughs to additional messaging or promotional items can be identified. Those activities could then be added to the database and depending on the call to action there could be very specific follow-up items assigned.
Magnifying Glass Identifying Potential Risks                                                  
Opting to send an e-card helps your firm clean-up the database. If a contact at a client leaves and the firm doesn’t know about it, it could become lost work if the firm doesn’t have any other contacts there. By tracking bounce backs and failed emails someone can look in the database and see what other contacts or relationships the firm has with the client and alert the firm of potential at risk clients.

VcardUpdating Contact Information and Communication Lists

When sending an e-card consider having contacts update their own information and which communications they would prefer to receive. With ContactEase this could be done by using our Online Client Update Form. Ask contacts to take a minute to review their data and make any changes necessary by providing the hyperlink to do so. The data is then cleaned up in the database and your firm has the most up-to-date information for a contact and contacts can opt for the communications that matter the most to them.

PeopleExpanding Your Reach
Within the e-card create a mini campaign of some sort through calls to action. If you have a Facebook Page or Twitter account your firm is trying to expand, create a perk for people to “like” or “follow” you. One firm did this by letting their contacts know that they had decided to use the money previously spent on physical cards and donate it to a local charity. For every follower they received they would donate X amount of money up to a certain dollar amount. They were giving back to the community while expanding their audience reach.

If you are spending the time and money associated with doing a holiday card it is important to identify what your key objective(s) are. If your firm is simply sending a card for warm wishes, think through the above points and how the card could be used more strategically for your business development and marketing initiatives.