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Watch out for anti-spam law when marketing on social media

Businesses should ensure their online marketing activities comply with Canada's Anti-Spam Law (CASL), says Toronto technology and business lawyer Peter Murphy. 

CASL, which applies to promotional emails, instant or text messages, and other electronic information platforms, will extend to social media communications in certain circumstances, he tells AdvocateDaily.com.

"There are exceptions, but the anti-spam provisions are for commercial messages that are sent to electronic addresses. A promotional post on a business or professional's Facebook wall would not amount to a commercial electronic message under CASL because it's not being sent to any particular recipient's electronic address,"  Murphy says. "Similarly, posting a photo on social media, liking a post or tweeting would not fall under CASL, even if done as part of a business promotion because the communications are not sent to the recipients' electronic address.  

He says CASL will apply if the social media app is used to send a promotional message to specific users' electronic addresses, provided one of the exceptions doesn't apply.

"Personal messages sent to a particular electronic address through a social media app's messaging function are subject to CASL if they're sent to encourage participation in a commercial activity, provided an exception does not apply," he explains, adding that Canadian businesses must ensure they comply with CASL if their use of social media expands into this area.

One of the goals of this legislation is to prevent spam or commercial electronic messaging that the recipient hasn’t consented to, notes Murphy, a partner at Shibley Righton LLP.

"This law made significant penalties available to the CRTC to combat spam and, as of July 1, 2017, complainants will have the right to sue infringers in court. I think most Canadians agree that outlawing spam was overdue when CASL was enacted," he says.

Murphy says law-abiding Canadian businesses have raised concerns about the time and effort required for them to navigate the complicated layers of regulation imposed by CASL.

"The root of the problem lies in the approach the Government of Canada took when drafting CASL and its regulations. Instead of defining what will be prohibited as spam with clarity, the government decided to do the opposite. CASL says you cannot send any commercial electronic message unless the numerous yet often vague provisions of CASL and its regulations permit it," he says.

For example, commercial marketers must collect express consent from their list of email recipients in a way that complies with CASL's rules, Murphy points out.

"If express consent is not obtained, senders of commercial electronic messages must be able to prove consent is implied or that an exemption is available under CASL given the circumstances of each message and its recipients. Companies must maintain tracking and records of compliance, and include an unsubscribe function and detailed identifying information in their commercial electronic messages," he adds. 

Compliance requires a concerted effort to understand the regulations and to apply them to the particular electronic marketing messages, Murphy says.

"CASL enforcements have been issued against a number of companies, including Rogers Media and Porter Airlines. These are major Canadian companies with huge teams of staff lawyers, yet they were found to be in violation of CASL. If they can't or won't comply with CASL, what is a small- or mid-sized Canadian business to do?"

Marketers' email subscription lists are an invaluable asset that must be managed accordingly and, where possible, they should make it easy for potential customers to give their consent in a CASL-compliant way, Murphy says.

"Records of all consents should be retained for CASL purposes. If you wish to rely on an exemption or implied consent under CASL, ensure the specific category you rely on applies and document this for each recipient. Build systems of tracking customer activity to establish CASL-implied consents. Compliance requires the implementation of a comprehensive plan that addresses the particular marketing activities of the business and applies CASL to them," he adds.

Murphy says there is a silver lining for organizations that invest the time and effort to comply with CASL.

"In addition to avoiding significant penalties for non-compliance, they are left with more valid email lists. This provides a tool for the business to build and manage relationships with customers and prospective customers. That’s at the heart of online marketing, and is a crucial part of good management in pretty much every business today," Murphy says.

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