OPERATIONS & LOGISTICS Lists in the age of CASL

Aligning your permission management strategy with email messaging technology is the key to CASL compliance

 By Martin Millican

In the weeks and days leading up to the CASL implementation deadline of July 1, companies of all size and shape were caught up in a panic. Millions of email pleas were sent to Canadians seeking “Express Consent” to continue sending ‘commercial electronic messages’ (CEMs).  Some of these appeals went so far as to say that if consent was not received by the July 1 deadline no further messages could be sent.

Unfortunately, this led many companies to lose a huge portion of their sales and marketing email lists, which for most organizations is a key source of revenue

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. Statistics from our outbound email service indicate less that 20% of recipients of CASL consent-request emails even bothered to respond. So much for a law that is supposed to encourage electronic commerce in Canada.

If you didn’t send your marketing contacts a request for CASL consent – either through neglect or careful consideration – you’ve avoided the first major hazard in dealing with this law. The challenge now is to take advantage of the three-year transition period in preparation for the real deadline: July 1, 2017.

Implied vs. Express Consent

CASL requires companies to have the consent of individuals to send commercial electronic messages. Consent status can be thought of as a single “agreement to communicate electronically” between your organization and the contacts in your database. There are two primary consent types under CASL: Express and Implied.

The documentation requirements under CASL to demonstrate Express Consent means most companies will need to classify their existing contacts as Implied Consent based on an existing business relationship. As long as you’ve been a responsible email marketer, you can probably apply two simple rules to determine if you have implied consent: 1) were the email addresses provided to you voluntarily?; 2) have you sent at least one CEM prior to July 1?

I’m not a lawyer so you can’t take this as legal advice (my lawyer told me say this). However, the only real risk you run is having the CRTC knock on your door because someone decided to complain to the authorities instead of simply unsubscribing to your emails. It’s not likely the CRTC will slap you with a $1 million fine for one or two complaints. The CRTC has said publicly their objective is compliance and not punishment. But the problem with CASL is that no one really knows for sure how the law will be enforced. Only you can determine if your email marketing practices – past and future – put your company or organization at risk.

Start capturing consent now

Regardless of what you may or may not have done prior to July 1 to prepare for CASL, any Canadian company doing email marketing is well advised to start capturing Express Consent from this point forward. The simplest way to do this is to add a checkbox, pop-up or confirmation mechanism to your email signup forms, whether you do it yourself or through an email service provider. You will need to capture a number of key details that you likely aren’t now, such as the date and time the consent was received, and possibly even the IP address of the subscriber’s computer. You’ll need this “consent record” in the event you ever are the subject of a CASL complaint and need to demonstrate you have Express Consent.

When seeking CASL consent, your request should remain as general as possible, so as not to limit the types of communication you may want to use in the future. For instance, something along the lines of: “I agree for ABC Corp. to send me commercial electronic messages. I understand I am able to unsubscribe at any time,”  should work just fine. Note that you are required under the law to add the qualifier about being able to unsubscribe.

The challenge

Once you’ve implemented a plan to capture Express Consent for future subscribers, you’ll still have your legacy database of contacts with Implied Consent status to manage. Obviously, a database of contacts that all have Express Consent status will deliver the best marketing results and will be the easiest to manage under CASL. However, the challenge is how to upgrade your existing database over the next three years.

Subscriptions vs. Consent

If you haven’t already done so, it’s time to start creating and offering multiple subscription types to your customers and prospects. This will allow individuals to review and select their particular communications preferences. You can create subscriptions that focus on different parts of your business or service, or create “Deal” or “Event” alert subscriptions.

Subscription type options will vary according to your business. The trick is to provide numerous compelling options while keeping them as simple as possible, which is a key advantage of creating alerts.

Apart from the benefits to your subscribers, this approach will encourage your Implied Consent subscribers to review your expanded subscription options and potentially become reengaged with your company. Meantime, it’s also a great opportunity to upgrade your subscriber’s consent status from Implied to Express.

You should also present your subscription options to a new email recipient as soon as their consent is received, or very soon afterward using a pop-up or a confirmation email. One of the requirements under CASL is to make it clear what you plan to send once you have consent, and a list of subscription options is an excellent way to do this – especially if they can also pick and choose.

There is nothing in the CASL legislation that prevents companies from automatically subscribing email recipients to every option once they provide their express consent to receive messages from the company. However, from a marketing perspective, it makes good sense to encourage users to manage their own subscriptions.

Subscription preferences can also be used to encourage recipients to think twice before they revoke their consent for your company to communicate with them at all. If you can effectively show them that there is something they may want to get from your company, you significantly decrease the chance of them revoking their CASL consent. We want to keep our prospects and customers engaged at whatever level they want, but just as importantly, we want to keep them engaged.

Automate the upgrade process

Technology can be used to automate the process of gradually upgrading and managing email permissions over time.

At a tactical level, a discrete banner can be added to all outbound messages sent to Implied Consent contacts asking them to upgrade their subscription preferences because new options are available. This banner would then disappear once upgraded to Express Consent.

If a new subscription is introduced at some later point, there’s no reason you can’t send everyone in your database a message to present the new communications option to them and give them an opportunity to unsubscribe if they want to.

You should have a single-click unsubscribe button that enables someone to unsubscribe to all communications from your firm, but the landing page for this action should show all the subscription options available to them, including some they may not have known existed. Your goal is to make it easy for the disgruntled subscriber to change their mind about revoking their consent and only change their specific subscriptions.

Prepare for the real deadline

The email messaging technology already exists to efficiently execute all of these strategies over the next three years. This also leaves time for more experimentation in this area. The challenge is to develop a sound permission management strategy and align it with the appropriate technological capabilities before the real ‘teeth’ of the CASL legislation set in on July 1, 2017, after which individuals will have the right to sue any company they believe has been ‘spamming’ them.

Martin Millican is president of of Envoke.com, a Toronto-based service provider and developer of permission-based automated marketing solutions.

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