Definition of Spam
Generally spam is considered to be mass, unsolicited email from unknown or unwarranted senders. However, the new legislation applies to the sending of “commercial electronic messages”, which can encompass email, instant or text messaging and social media messages and other forms that we may not consider to be spam. Many times information that is sent may not be considered to be spam by the sender, but can be viewed as spam by the recipient. It’s important to think of how the message will be received on the other end before sending. Hopefully, the yet to be released regulations will provide some added details or thresholds to more readily define the scope of this term.
Expressed and Implied Consent
Electronic messages are not considered spam if the recipient consented to receive the message so it is important that you first determine whether or not you have approval from the recipient to send the message. Consent comes in two forms – express and implied.
Expressed consent, as defined in the Act, is what is known as “opt-in” consent, whereby the person or corporation expressly agrees to be contacted before any communication is sent. Usually this would come in the form of a newsletter subscription sign up, adding an email address to a written or electronic list, or checking a box to receive more information. This is a more viable option for business owners because it is less likely that an issue will be raised from those who have clearly indicated interest.
Implied consent has a broader use, which can actually be beneficial to marketers and small business owners, but could also pose to be harder to prove if any issue arises. According to the new Act, implied consent occurs when “[t]he person who sends the message, the person who causes it to be sent or the person who permits it to be sent has an existing business relationship or an existing non-business relationship with the person to whom it is sent;" (Bill C-28 Sec. 9a).
If a customer has purchased wares or services from your business with the past two years, there is considered to be an existing business relationship between you and your customer, which would be implied consent. There is no time limit on the relationship status if the customer has provided expressed consent for future contact. In terms of expressed and implied consent, it’s best to err on the side of caution and try to gain expressed consent for all users when possible.
Messages must clearly express to the recipient who the message is coming from, remaining consistent with the branding used when the recipient made initial contact with the company. There must not be any misleading information in the subject line that misrepresents the message or the sender. All messages are required to include the active contact information and postal address of the sender.
Businesses who have an email newsletter must have an unsubscribe option clearly stated on each message so that users can easily halt future correspondence at any time. Some users may not know to use the unsubscribe link, so including contact information for your business is important to ensure that recipients are able to contact you in another form in order to be removed from the mailing list. If a client does contact you via other means to be removed from the list, unsubscribe the user manually and notify them of the removal immediately.
Tips for Small Businesses
If you have a newsletter sign up area on your website, make sure your database saves important information such as name and date of sign up – not just the email address - so that you are able to prove consent if a problem arises. Always give your customers your contact information in any messages sent as well as the option to “opt-out” or “unsubscribe” at any time. Customers should not be automatically placed in an email database, they must be able to choose whether or not they would like to receive information from you. Don’t bombard your customers with messages, it can easily frustrate your clients if their inbox is getting constantly filled with messages from you. Setting up an account with email marketing software can ensure that your messages are compliant with the government rules. Senders who don’t comply with the new regulations can face serious fines, so make sure your messages are useful or informative to the user in some way, this will make customers look forward to your correspondence and make your database grow.
There will be more to come on this important topic when the regulations are released.