Remarketing and Anti-Spam Legislation In Canada (CASL)

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A major slice of the new Canadian Anti-Spam Legislation (CASL) goes into effect on July 1 introducing strict opt-in requirements for marketers targeting Canadian customers. Over the last few years, many governments have been reviewing their data privacy legislation, especially when it comes to commercial marketing, including all the European countries which already have opt-in consent for commercial marketing. Canada is the latest to roll out opt-in regulations with steep penalties for violations. The regulations include how, when and to whom companies can communicate using email, text messages and other forms of commercial electronic messages.

In the last few weeks we’ve received many questions from marketers seeking to understand what impact the new Canadian Anti-Spam Legislation has on remarketing. This is our interpretation, but of course you should seek your own legal advice.

The new regulation has been circulating in draft form for some time, and it has not changed substantially now the law has been passed. In essence it requires consent in order to send commercial marketing messages, including marketing emails, and applies to both B-to-C and B-to-B. Our interpretation is that remarketing emails fall into the category of ‘marketing emails,’ therefore needing user consent.

CASL-Infographic



‘Express and Implied Consent’

Like many other countries’ data privacy legislation, Canada has defined two types of consent: express and implied consent. Express consent is pretty straight forward – this is an explicit indication of consent to send marketing messages. Typically this is where users have opted-in via a registration or newsletter sign-up or similar. For email remarketing this is simple – you can remarket to your subscribers. However, the Canadian Anti-Spam Legislation has a specific carve out that applies for remarketing where consent can be implied.

Implied consent is different from express consent because this is where the legislation deems it reasonable to assume that the user has given their consent based upon their actions. It’s a pragmatic way of ensuring that the legislation doesn’t restrict reasonable and expected business practice.

The Canadian Anti-Spam Legislation defines implied consent specifically in three different ways:

(1)    Where an existing business relationship exists

For example, a customer has already purchased from you, or has enquired about a purchase from you.

(2)    Where an existing non-business relationship exists

This relates to charities and membership organizations (for example), and the same principles hold: you have implied consent to contact your members, and those that have contacted you to enquire about membership.

(3)   Where the recipient’s contact details were published or given to you

If a user freely (and without restriction) gives you their contact details then consent can be implied as long as your message is relevant to the user based on their activity.



So where you already have a relationship, and / or the users gives you their email address willingly, you can imply consent subject to some conditions.

Email remarketing qualifies under both (1) and (3).

(1)    Where an existing business relationship exists

Here an existing business relationship is defined as “the recipient has made, or enquired about, a purchase or lease of goods…” This means that existing customers can be contacted, and those that start the process. This is essentially where a user is ‘negotiating a sale’ and covers shopping cart abandonment where a user has started the process of a purchase but stopped part way through.

(3)   Where the recipient’s contact details were published or given to you

The users email address was given to you without restrictions gives implied consent. This is applicable for both cart and browse abandoners where a new user gives you an email address as part of their shopping process.

It’s worth noting that Implied consent is time-limited, meaning it technically does not require you to check an existing unsubscribe list. Their implied consent re-subscribes them for the time limited duration specifically in the context of their actions on the site. However, SeeWhy still recommends checking against and honoring any existing unsubscribes for implied consent.

Let’s summarize what this means for  both browse remarketing and shopping cart abandon remarketing:

Browse Email Remarketing – Triggered email follows up on users browsing activity. Canadian Anti-Spam Legislation permits this where:

  • The user is subscribed (express consent via opt-in)
  • The user freely gives you their email address (implied consent)


Shopping Cart Abandonment Remarketing – Triggered email follows up when a user abandons a shopping cart. Canadian Anti-Spam Legislation permits this where:

  • The user is subscribed (express consent via opt-in)
  • The user freely gives you their email address (implied consent)
  • The user starts a shopping cart process but does not complete it (implied consent)

If you have questions specific to your site, shoot us an email so we can help!

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