Know what you need to do to be compliant with CASL.
Big News for Real Estate Businesses in Canada
Over the last few weeks, we have been hit with a large number of inquiries. People are asking about the upcoming Canadian Anti-spam Legislation (CASL) and what it will mean for their Real Estate Business.
CASL has been in the works for a few years, but this year it ‘goes live,’ and software/service companies like us have had to make a few changes to ensure that we remain compliant when the regulation gets enforced on July 1, 2014.
But this blog post isn’t about us, it’s about you, our clients. We wanted to give you the heads up on what you can do to ready your business for CASL. A word of caution, though… we are not a legal authority on the guidelines. If you want a more comprehensive overview for how REALTORS® can prepare for CASL, the CREA — CanSpam Details Report is available online.
CASL was formed to eliminate unwanted emails from Canadian inboxes, pure and simple. As it gets rolled out, regulators are working to define what is considered acceptable forms of Commercial Electronic Messaging (CEM).
CASL applies to anyone (including international businesses) sending commercial electronic messages (CEM) to receivers within Canadian borders.
A CEM is any message that encourages participation in commercial activity. This could be an advertisement, a promotion, coupons, offers, business opportunities, events, etc.
What makes CASL especially tricky is that businesses must ensure that there is expressed (clear, explicit) or implied consent before emailing or texting people in Canada. Consent is one of the pillars of CASL, so it’s key to get this right and stay compliant with the regulation.
Infographic courtesy of the folks at Cake Mail
Implied Consent
Implied Consent stipulates that you are permitted to email or contact someone because you have an existing business relationship with them. This means that the sender and the receiver of the communication have engaged in business together within the previous two years from the date the message gets sent out. It’s a mouthful, but it’s not that difficult to review your personal database to determine whether or not you need to obtain Expressed Consent.
Expressed Consent
Expressed Consent means that someone has agreed that you can send them Commercial Electronic Messages (CEM). The prospect may have signed up for your newsletter, entered their name asking for more information on a property, or filled out a form. In this case, because they have no prior relationship, they must clearly act and indicate that they wish to be contacted by you. You are obligated to inform them that they can unsubscribe at any time from your messages, and you are expected to keep these records.
If any Redman product sends email on your behalf to a client, the unsubscribe option is included. For personal emails or third party systems,you’ll want to review the CREA document.
The infographic above provides a clear explanation of the duration of expressed and implied consent relationships in CASL.
Common CASL Questions
What about my pre-existing relationships prior to July 1, 2014?
CASL states that any expressed consent you’ve collected before July 1, 2014 is permissible, even if the consent gained at that time doesn’t meet all of the requirements of CASL. Section 3.1.6 of the CREA Report reads,
“…if an existing business relationship or non-existing business relationship has existed at any time prior to July 1, 2014, and the REALTOR® member and recipient have communicated through electronic communications, then consent is implied until July 1, 2017, unless the recipient unsubscribes”
You can find out more on existing business relationships clauses on page 8 of the CREA document, but the basics are this: For your existing clients, the regulation grandfathers your previous clients to its enforcement date and it gives you three years to acquire consent.
How do I get Expressed Consent from a Contact?
There are some key details to obtaining expressed consent, and this is unique to this regulation. It stipulates that
- Pre-checked opt-in checkboxes are prohibited
- The purpose of your message, or a Request for Consent is required. In this request, you must identify that you are seeking consent and for what purpose. You can do this either with a checkbox (with a written description), or you could use a double opt-in confirmation message.
Are there exceptions to this regulation?
There are, and you should know about them, since they could easily involve REALTORS®. The CASL exemptions are these scenarios:
- Sender and receiver have a previously existing business relationship (through a purchase made in the last two years or an inquiry within the last two months)
- Sender and receiver have a previously existing non-business relationship (family, etc)
- The receiver shared their email address directly to the sender (as in a face-to-face exchange), did not say that they didn’t want to receive messages, and those messages are within the receiver’s business interest.
Do Redman Tech products comply with CASL?
Yes, Redman will make changes to all default opt-in functionality on the Redman platform before the July deadline. (You will want to review any custom forms that you have created in the past, as these will likely need to be modified.) The default and custom forms are accessible via RedForms.
Questions to Ask Yourself:
Do all of my emails contain a signature with clearly defined contact information?
If not, this is one of the first things you want to take care of. This means that you include the name of the person, and/or the business sending the message, and on whose behalf the message is being sent (if it is different from the sender), as well as contact information, mailing address, and email/phone.
Do all of my emails have a clear unsubscribe option?
Verify that any of your personally managed or third-party email systems have clearly defined unsubscribe options. All Redman Tech email features are compliant in this matter.
Do any of my checkboxes on my forms come pre-checked?
We’ve made sure that the checkboxes on any of the Redman default forms for expressed consent remain unchecked; however, you will want to check any custom forms on or before July 1, 2014.
We hope this information is of use to you as you try to navigate through these new regulations. We will post new blogs on the changes to the legislation (because exemptions will likely change) as we hear about them. If you would like to research the law directly, visit this site.
Just remember: You do have some time to get things in order. :)
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