CASL, or the new Canadian Anti-Spam Legislation, is quickly becoming a hot topic in the real estate industry, for good reason.
Knowing the current practices of many real estate agents, there are a huge number of real estate agents who are at a very high risk of facing some stiff fines. There are some major changes in practice that need to happen, and happen quickly. The CASL provisions go into effect on July 1st, 2014 and you can be punished up to $10 million PER VIOLATION as a company.
Brokers and office managers: Don’t be complacent. The law clearly states that directors, officers, and agents of a corporation can be liable if they fail to exercise due diligence to prevent the commission of a violation.
Before we get into the law, I will state for the record that the following article should not be construed as legal advice and everyone should do their own due diligence to make sure that your system(s) are in compliance or consult with an attorney familiar with the new laws.
What Is CASL?
CASL or the Canadian Anti-Spam Legislation, establishes rules for sending of commercial electronic messages (CEMs) and takes effect July 1st, 2014. CASL applies to individuals and businesses that are located in Canada OR that send electronic messages for commercial purposes to recipients located in Canada.
Commercial electronic messages are defined as email, text messages, and instant messages including social media. While it is stated that a “public post on your Facebook wall” would not likely count as a CEM, a post directed at an individual (posting a message directly on someone’s Facebook wall or as a reply to someone’s post) may constitute a CEM.
CASL is designed to make it clearly identifiable who is sending the emails, what types of emails they are consenting to, and that they do in fact consent to receiving those emails. In order to achieve this, CASL requires all CEMs (including the request for consent if using a double opt-in process) to contain the name of the person and/or business sending the message, and on whose behalf the message is sent if different from the sender.
It also requires contact information including mailing address and email and/or telephone number for that person. “On behalf of” is an important differentiation here. Many CRMs and email systems today send emails on your behalf. That means you have to clearly identify what system will be sending emails for you.
CASL also states that you must have an easy unsubscribe mechanism included in every email and must notify them that they can unsubscribe at any time at no cost.
How Can I Obtain Consent Under CASL?
Consent can be obtained either in writing or orally. Keep in mind that it will be up to you to prove that you have obtained consent if there is a complaint. The required disclosures must be made “obvious and conspicuous” to the consumer. We all know how companies bury information like this deep into a terms of service, however CASL specifically prohibits this. You also cannot use pre-checked boxes for consent.
Exceptions to CASL
Personal Relationship: If you have a personal relationship, as defined by the Governor-in-Council, then you are exempt from obtaining consent for that person. A personal relationship is limited to individuals and cannot be considered when sending CEM on behalf of a corporation (i.e. I can send my mother an email asking her about buying/selling real estate, but I cannot send her an email asking her to sign up for Home Value Leads).
Past Relationships: Former clients do not count as a personal relationship unless you regularly converse and meet. Past relationships, however, do provide an exception. For past relationships generated prior to July 1st, 2014 you have consent for a period of 3 years from the date of the law going into effect.
Request for Information: The regulation addresses this by exempting messages sent in response to requests, inquiries or complaints.
Referrals: CASL allows you to email a referral, provided that you indicate the complete name of the person that referred them and that the person has a previous relationship with the referral source.
Business to Business: If you have an ongoing business relationship with another business such as a title company, lender, lawyer, etc then you may continue to communicate with them through electronic means without consent. If you have a client who is a developer, builder, or investor, then it could be argued that this is a business to business communication as well.
What Does CASL Mean For Real Estate Agents?
That depends on where you are located and who your clientele are. The regulations provide that a CEM that is sent by a person who “reasonably believes the message will be accessed in a foreign state” listed in a schedule to the Regulation will not be subject to CASL – provided that the CEM conforms to the law of the state that addresses conduct similar to CASL. This means that if you operate solely in the United States and have no expectations for someone in Canada to register for your site or request additional information from you, then CASL may not apply to you. However, if you have any Canadian clients or live in a border area where you can reasonably expect that a Canadian may sign up for your site, then you need to comply with CASL regulations and have consent to market to your clients and leads.
What Does This Mean For Home Value Leads Clients?
For most of you, this law will not affect you. For those of you in Canada or in border states who advertise to Canada, it could mean your entire business. You are responsible for complying with the regulations of CASL. We will be making some changes to the sites of our customers in Canada over the next few days to ensure that we are compliant with CASL before the July 1st start date. If you have any questions, please let us know, but we recommend that you speak with your broker and/or attorney to ensure that you are in compliance with CASL.