Canada’s Anti-Spam Legislation (CASL) and your Practice

Effective July 1, 2014 Canada’s new legislation (CASL) takes effect. Healthcare practitioners will want to make sure their marketing communications methodologies are on the right side of this law. Failure to comply could cost individuals and corporations significant fines. The full legislation can be viewed at http://laws-lois.justice.gc.ca/eng/acts/E-1.6/FullText.html.

Note: This article is not intended to provide legal advice nor complete analysis of the Act, but rather to inform mindZplay users of the potential ramifications to their day-to-day business practices.

WHAT IS CASL?

Its’ intended effect is to deter and prevent deceptive and damaging forms of spam and Internet practices. After long consultations with industry, organizations, legal experts and interested parties, Canada has now ratified a bill that is intended to increase the reliability and trustworthiness of the digital economy for Canadians.

The legislation deals with how, when, where and why you are authorized to send commercial electronic messages (CEMS). Commercial electronic messages that do affect your practice includes emails, text messages, instant messages, social media messages, telephone calls, and voicemail messages that are intended to solicit business.

You may be asking yourself the following question. “As a legitimate business and healthcare practitioner, how can CASL affect the day to day operation of my practice?” In a nutshell, under the new rules you are now required to obtain permission (either implied or expressed) from your potential clients before you can legally send them electronic messages about your business and services. In addition, you would be well advised to maintain records so that you are able to prove that you have received this permission from them, if needed.

WHAT IS A COMMERCIAL MESSAGE?

A commercial message is a message that contains content that is intended to solicit business or commerce. CASL covers more than just the words contained in the message. It also includes commercial website page content ONLY if a link to that page is included in the transmitted message.

WHAT IS PERMISSION?

As mentioned, CASL requires that you receive permission from your clients and potential clients before you communicate with them electronically about your business and services. Within the act both “Expressed” and “Implied” permissions are acceptable. What is the difference between the two?

“Express” permission is where a client or potential client has formally “opted-in” to receive commercial messages from you. They may check a box on your website, complete a website form or otherwise give you a provable permission to receive your electronic messages. This is the strongest form of consent as it is very clear what your client’s intent is with respect to you marketing to them.

“Implied” permission, on the other hand, is when consent is not actually stated but it is inferred by another action taken by your clients. For example, when you already have an existing business relationship with a customer or client it is implied that they expect on-going business related communications from you. For example, when they book an online appointment with you they agree to receive email confirmations, which is a commercial electronic message.

Note: This covers the majority of mindZplay system users who use automated email to confirm appointments and to possibly send promotional messages (CEMS).

In addition, “Implied” permission can also include persons whom you may not even know, as long as their business and duties are relevant to your business and their contact information has been made publicly available to you. Obviously, a random potential client (consumer) does not fit this description but a physician or other complimentary practitioner in your area would. You could contact them and strike up a conversation intended to initiate referral services. You do, however, need to ensure the person who publishes their contact information has not also published a disclaimer along with it, stating that they do not wish to receive commercial messages.

HOW DO I GO ABOUT GETTING PERMISSION?

Your existing client’s that book online already have given you implied consent. The issue you have is with new and potential clients.

When you stop to think about this for a minute you will quickly recognize that as a health care professional it can be very easy for you to obtain permission from your clients without deviating from your regular day-to-day practices. Here are just a couple of ideas you may want to consider implementing.

1. You are required to obtain signed treatment consent from your clients before you are able to treat them. Why not add a checkbox to this form that simply states “I understand and agree that as part of my on-going care, I may receive communications from you electronically or otherwise about my treatment and related services.” Once checked, this would be an example of client giving you “Expressed” permission for you to communicate with them about your business and services.
2. An example of implied consent would be when a new client visits your website and requests an online appointment with you. This action is inviting a business relationship with you and therefore is “Implied” permission for you to communicate with them.

In both cases there will be adequate documentation for you to provide proof of consent later if you are ever challenged.

BEYOND PERMISSION

There are a couple more very important CASL compliance matters, which may affect the way you presently communicate with your clients. These include but are not limited to:

1. All the commercial email and electronic newsletters you send to your clients must contain the full name of the sender along with valid contact information. You are likely already doing this, as it is only common sense to provide your clients with a way to get back in touch with you. That said, with CASL it is no longer an option, it is a must have.
   Note: With respect to your appointment related emails that your mindZplay system generates, your name and contact information are already included in the message content.
2. All of your commercial messages must provide the recipient with a working mechanism, manual or otherwise, for them to “Opt-out” of receiving any further electronic correspondence from you. It is also very important that you monitor and honor these “Unsubscribe” requests within ten days to ensure CASL compliance.

Note: Your mindZplay appointment e-mail content is customizable by you, you can simply put a permanent line at the bottom that says, “If you wish not to receive electronic messages from me, please reply to this email with your request and your e-mail address will be removed from our mailing list.” Then you would manually remove that address from your mailing list.

IN SUMMARY

Your mindZplay practice management system will continue to help you build your practice by engaging your clients and potential clients through professional, interactive website tools and legitimate email correspondence. This helps you maintain your client list and minimize the time required to legitimately correspond with your clients through mass emailing tools and automation – all the while maintaining CASL compliance.

While visiting your website potential clients will gladly provide you with consent if by doing so they believe it will be beneficial to them. They will welcome the convenience of online website tools such as online appointments and class registrations, to name a few, where they willingly provide you with their email address and consent to receive further communications from you. All well within the rules of CASL.