We recently published our practical guide to CASL compliance for email marketers. In this post we’ll look a bit closer at an important aspect of CASL compliance: how to properly obtain express consent in your email signup forms. We also recommend that you review these guidelines on the same topic, published directly by Canadian Radio-Television and Telecommunications Commission.
What information needs to be displayed on the form
CASL requires that specific information be provided on a signup form to obtain express consent. Specifically, an opt-in form:
- Must clearly indicate what you are asking recipients to opt into.
- Must indicate who is the sender.
- Must include mailing address AND phone, email, or Web address of the parties seeking consent.
- Must indicate that the recipient may unsubscribe.
Here is an example of a form that does not properly collect express consent, as it fails to include enough information on what will be sent, does not include contact information, and there is no indication that the recipient may unsubscribe.
Here is the same form, but with added information for CASL compliance. It contains clear details on what will be sent, instructions on how to unsubscribe, and contact information for the company that will be sending the newsletter.
There are cases in which consent to send commercial emails is collected as part of a form whose main purpose is something else. For example a checkout page on an e-commerce store, or a free trial signup form, as shown in the example below.
The first picture shows a non-compliant form: the main issue is that the checkbox through which consent is collected is pre-checked. Remember that CASL is an opt-in law, not an opt-out one. So customers must opt-in. Additionally, the form fails to include the other information that must be provided.
Here is a compliant version of the same form:
- It provides information about unsubscribing
- The opt-in checkbox is not checked
Note that if the signup form is part of a Web page that contains detailed contact information, but not directly within the signup form itself (e.g. a checkout page on an online store), that should be sufficient (make sure that it is clear that the sender is the company whose contact information is displayed elsewhere on the same page).
Signup forms and double opt-in
If editing a form is difficult or impossible, we believe that using a double opt-in (or “confirmed opt-in”) email subscription method may satisfy CASL requirements as consent is given in the subscription confirmation request email. This opinion is based on the fact that the subscriber remains “pending” (not a subscriber yet!) until subscription is confirmed (i.e. until consent is given) by clicking on the corresponding link in the subscription confirmation request message. Please note that this is our opinion, not legal advice. You should check your specific scenario with your lawyer.
More details on this in our practical guide to CASL compliance.