As noted in a recent blog http://blog.blg.com/nfp/Lists/Posts/Post.aspx?ID=376, Canada's anti-spam legislation, generally known as CASL, came into effect in large part on July 1, 2014. We thought it would be helpful to remind people of some of CASL's key components. (Please see http://blog.blg.com/nfp/Lists/Posts/Post.aspx?ID=385 for information on the basic requirements under CASL, http://blog.blg.com/nfp/Lists/Posts/Post.aspx?ID=389 for information on consents and http://blog.blg.com/nfp/Lists/Posts/Post.aspx?ID=391 for information on content.)
Today we will look at unsubscribe features. (Please keep in mind that there are many details not included in this overview and that, like most things in life, the specific needs depend on the specific facts.)
If an e‑mail recipient clicks "unsubscribe", does that "unsubscribe" apply to all CEMs from the association or only the category of CEMs the "unsubscribe" was selected for, e.g., payment reminders? If a member/donor clicks "unsubscribe", does that apply to all CEMs from the association?
CASL requires a recipient to be able to unsubscribe from receiving all CEMs from a sender. If an association's unsubscribe mechanism simply allows a recipient to unsubscribe, that would need to apply to all CEMs sent by the association. However, CASL does not prohibit the association from creating a preference centre whereby the recipient can choose which categories of CEMs it wants to receive or no longer wants to receive. For example, the unsubscribe mechanism can bring the recipient to a webpage where they can choose among a list of CEMs (e.g., membership events, program info, fundraising) and indicate whether they wish to unsubscribe from all CEMs, or a subset of them.
If a recipient unsubscribes, can consent ever be "renewed" through an exemption, or must the recipient give express consent?
The CRTC has indicated (in the CASL Regulatory Impact Analysis Statement, available at http://fightspam.gc.ca/eic/site/030.nsf/eng/00271.html) that implied consent due to an existing business relationship is reinstated with every new or subsequent transaction that would qualify for that exemption. This means that if a donor unsubscribes, but then subsequently donates to the association again, the association would have implied consent to send CEMs based on that subsequent donation (assuming that the CRTC's statement applies to the existing non‑business relationship). There is some uncertainty about this topic, however, because CASL does not specify how an unsubscribe request may be overridden. It would be prudent to obtain express consent before sending a recipient CEMs.
There are many nuances to CASL and its application. We have a team of experts at BLG and would be happy to assist with an audit of your organization's CASL processes and policies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
