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Keeping up with Canadian email legislation

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Sending email to Canadians as part of your b-to-b email marketing efforts? You may want to review opt-in procedures in advance of legislation that could be passed by the Canadian government next year. Canada's anti-spam legislation was introduced in the Canadian parliament in April 2009 as Bill C-27 in a bid to create the Electronic Commerce Protection Act (ECPA), Canada's version of the U.S.' CAN-SPAM legislation. After going through several hearings, the bill—now called Bill C-28—may be taking effect soon, said Dennis Dayman, chief security officer at Eloqua Inc., a provider of marketing automation and lead-generation solutions. The Canadian Radio-television and Telecommunications Commission (CRTC) in early October issued two guideline documents based on previous C-27 work: guidelines on the interpretation of the Electronic Commerce Protection Regulations and guidelines on the use of toggling as a means of obtaining express consent. “It's slow-moving, but we should see it passed and implemented during the second half of 2013,” Dayman said. The most important point for marketers to note is that consent must be opt-in, he added. That means that prechecked boxes on email sign-up forms should no longer be used for email addresses based in Canada. “If you got emails using prechecked boxes, you now have two years to go out and obtain true consent,” Dayman said. Another change: Now marketers must add text to all signups to let people know exactly what they are signing up for. Marketers also must send a confirmation email so registrants know they have opted in—a procedure that is now a best practice, as is having a way to opt out or opt down in that confirmation email, Dayman said. Marketers got good news on another point. Previously, the CRTC had discussed opt-in consent requiring physical evidence such as a signature or a voice print. The commission determined that will not be required. Other changes, according to Dayman, include:
  • Marketers can use a P.O. box; a physical address is not necessary.
  • Subscription emails or text messages can't be used to elicit consent. In other words, marketers can't send an email saying, “We're opting you in if you don't respond.”
  • You need a paper trail. Now, marketers will need to start keeping opt-in records that include the date, time stamp and potentially the IP address of the person that visited your site to sign up. “You may want to protect yourself and capture postal addresses—any information that you can use to prove that you got consent from the person in question. Because of private right of action, people in Canada can now sue if they feel like their information is being misused. Consent will help you defend any lawsuits,” Dayman said.
Dayman suggested marketers look at their list and, if they didn't obtain true consent, reach out to anyone with a Canadian address or area code or .ca extension on their email address. “Take a look at your forms. How are you capturing data? Are you being explicit about what people will get and that they will be receiving commercial emails? You might want to do an audit and create something specific on your forms specifically for Canadians,” Dayman said.
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