• Brooke Simmons

Are You Building a Compliant Email List?

Updated: Jun 18, 2019


Do I ask for email marketing sometimes?


Yes. But I’m super selective as to what comes in.


READ: Don’t throw your marketing stuff at me unless I’ve asked for it.


The other day, I received a marketing email from someone that I know of, but I certainly never, ever requested to receive anything from via email. I was even more perplexed as to how they got my email address in the first place. So, l dug a little bit, and as they were using a reputable email marketing system, this person had to disclose how I ended up on their list.


It read: “We are connected on LinkedIn”.


*Facepalm*


Could you imagine if everyone on your LinkedIn randomly added you to their email marketing list?


Why Is Keeping a Good, CASL List Important?


If you are adding people to your list that don’t feel like they should really be there, you are turning people off. Yes, even if you really think they want to hear from you and even if they are in the target audience of your marketing efforts.


More importantly, if you are running a business within Canada and sending email marketing, OR you are running a business elsewhere that sends email marketing to people within Canada, you need to be familiar with the Canadian Anti-Spam Legislation (CASL). 


Not only does following CASL rules ensure that you are being authentic with your marketing efforts, it’s also the law which packs consequences for people who choose to ignore it. Just one example is Toronto-based Porter Airlines – who I am a real fan of – was fined $150,000 for failing to keep a record of proof of consent of subscribers and failing to provide a clear “unsubscribe” button. Yikes.


Get Clear on Consent


So let’s talk email marketing permission basics. One of the important things to note when sending out email marketing is who your audience is and how they got there.


Express Consent vs. Implied Consent

Express Consent

These are the ideal people to have on your list as they have come to you directly to express their desire to be on your list. They have given you direct permission (usually online) to hear from you on a fairly regular basis. Ideally, they have used the double opt-in process (validating the email address). Express consent never expires under CASL unless permission is revoked by the party who originally signed up (via an unsubscribe or similar communication). You will need to make clear to your subscribers how their information will be used.


Implied Consent

Implied consent means that you have some sort of existing business relationship such as someone has made a purchase directly from you, is your active client, or maybe they have made a donation or some other direct transaction. It’s important to note that now under CASL, implied consent expires after 2 years, so you need to keep tabs on who on your list has expired via dates that the working relationship commenced.


No-No’s:

Again, there is seemingly another level of consent that exists – but not legally – and that is “assumption consent”. That is when you assume people want to hear from you because they may be interested in what you have to say.


While this may or may not be true, in the words of Miguel Ruiz, never assume, and always ask permission first. Here are some examples of naughty ways (i.e.: nope, don’t do it) to add people to your list:


  • Adding connections from a social media source or other networking venue…such as LinkedIn…(ahem).

  • Meeting someone at a networking event/conference and automatically adding them to your list. (I’ve heard arguments that this is implied, but I disagree. I think it’s tacky and definitely not implied consent. Again…imagine if everyone you met added you to their list?) This happens all. The. Time.

  • Adding a client’s contacts to your list without expressed consent IE: facilitating for a client and adding their participants (staff, students) to your list without a specific agreement AND permission from each individual. This idea makes me very uncomfortable because you are likely playing with PIPEDA and CASL infringements…i.e.: potentially tricky legal stuff.

  • Sending marketing to people who purchased from you/did business with you eons ago without getting their expressed consent first. (They likely will have no idea why they are hearing from you all of a sudden leading to large amounts of unsubscribes).

  • Buying lists or obtaining mass lists that don’t belong to you. (Hellllllll no).


3 Agencies Are Responsible for Enforcement:


CRTC: Mostly dealing with electronic message transmission, the CRTC is responsible for investigation and enforcement - including setting administrative monetary penalties against violators. COMPETITION BUREAU: Investigates and acts on deceptive and misleading marketing practices and acts as it's own law enforcement agency.

OFFICE OF THE PRIVACY COMMISSIONER OF CANADA: The Commissioner is able to enforce legislation against things like unauthorized collection of personal emails and email address harvesting.


Checklist for Up-to-Snuff CASL Compliant Email Lists

  • Clear Forms and Communication – Ensure that your sign-up/subscribe forms on your website are clear to potential subscribers – so they know and understand exactly what they are subscribing to. Ensure that they are the one’s adding their email address and hitting the subscribe button.

  • Use a Reputable System – Ensure that you are using a reputable email marketing system to send your emails and they all contain an “unsubscribe” button as well as your physical address and an actual “reply to” email address. A reputable email marketing program will make you go through these steps.

  • Implement a Double Opt-In – Consider (strongly) implementing a double opt-in method for your list for added piece of mind that you are gaining subscribers mindfully and lawfully.

  • Ask Your Implied List to Opt In – Ask “implied consent” people on your list, to opt-in before July 17th, 2017. Be clear and direct about this – don’t assume. You can send them a note asking to opt-in to keep hearing from you.

  • Keep Healthy Records – Ensure your records include dates that they were added to your lists, method and proof of permission. Ensure this can be accessed within your email marketing system or through another record keeping method. For opt-ins in person, (like at a trade show, for example,) have the person fill out and sign an opt-in form that includes the date. Keep these forms for your records.

  • Keep Your List Clean – Scrub your lists for implied consent subscribers on your list who have been on your list for longer than 2 years. If they were added to your list prior to July 1, 2014, you have until July 1st, 2017 to obtain express permission. Anything after July 1, 2014 – the 2 year rule applies.

  • Create a List Policy and Procedure – Create a new policy in your business that pertains to the acquisition, storage and review of your email records used for marketing purposes. Have it written down. And most importantly, follow it.

Remember the onus is going to be on the business owners to ensure they are compliant with the CASL regulations. But most importantly, you want to be doing email marketing in an effective way, and not one that is actually being counter-productive by turning people off.


Also note that effective July 1, 2017, a private right of action takes effect allowing individuals and organizations to bring a lawsuit before the courts for any perceived violations. All the more reason to get your lists, policies and procedures in place as soon as possible!


With love,




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© 2019 by J. Brooke Simmons