Richard Silver’s Guide to CASL for Real Estate Agents

Richard Silver’s Guide to CASL for Real Estate Agents

Every day it seems I get two kinds of email about CASL (Canada's AntiSpam Legislation). As a past president of the Toronto Real Estate Board (TREB) and a lifelong technology early adopter people want to know my thoughts, so I thought I'd lay them out here for everyone to see. If you are a lawyer and think differently, feel free to chime in in the comments. I'm not a lawyer so while these are my considered thoughts, please engage legal counsel if you feel need it.

unsubscribe button
the all important  and clear unsubscribe button

Frankly I welcome CASL as I've tried to be in compliance for years and am happy Canada is showing world leadership in the fight against the scourge of email spam.

Categories of CASL Mail I get

  • Type one: emails asking me to opt-in to mailing lists to which I already belong.
  • Type two: questions from other agents about whether they need to double opt-in their whole list again.

Frankly, for the most part people in group one are misguided. By force opting in your list again (you should already have done this by sign up), you risk losing between 20% and 60% of your subscribers. Why? You are forcing the person to engage right then or there or be lost forever.

How many times have you signed up for travel newsletters and ignored them for eight months before booking a resort on month nine? I know it's happened to me many times. Newsletter subscribers go through cycles and they aren't always paying attention. You'll lose all of your subscribers who are on a down cycle.

Why has almost everyone gone mad over CASL? The penalties are huge, up to $1 million for individuals and $10 million for organizations and Brokers and Real Estate Boards are concerned.

The penalties won't matter though if you are in compliance. If you've been running this area of your real estate business right you should already be in compliance. My guidelines probably apply to most other consultancy or licensed professional business types, but they are the ones that I use personally.

Email requirements

Here's what the act says:

(2) The message must be in a form that conforms to the prescribed requirements and must (a) set out prescribed information that identifies the person who sent the message and the person — if different — on whose behalf it is sent;
(b) set out information enabling the person to whom the message is sent to readily contact one of the persons referred to in paragraph (a); and
(c) set out an unsubscribe mechanism in accordance with subsection 11(1).

Here's what it means:

  • a - you need to identify yourself properly: surely you are not using a fake name
  • b - you need to include valid contact information in your email: of course you do.
  • c - you need to have a clearly marked unsubscribe link (at the bottom at least): of course you do.

So if you've been following any kind of good practices and email hygiene your email has been in compliance for years.

To whom can you send email

Here's what the act says:

6. (a) provides a quote or estimate for the supply of a product, goods, a service, land or an interest or right in land, if the quote or estimate was requested by the person to whom the message is sent;
(d) provides notification of factual information about
(i) the ongoing use or ongoing purchase by the person to whom the message is sent of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the person who sent the message or the person — if different — on whose behalf it is sent, or
(ii) the ongoing subscription, membership, account, loan or similar relationship of the person to whom the message is sent;
(f) delivers a product, goods or a service, including product updates or upgrades, that the person to whom the message is sent is entitled to receive under the terms of a transaction that they have previously entered into with the person who sent the message or the person — if different — on whose behalf it is sent;

Here's what it means:

  • a - you can send answers to anyone who emails you.
  • d - you can update people using your VOW (virtual office) or whom have signed up for your website.

There's a whole bunch more people you can mail as well, under section 9, implied consent. According to the act:

(a) the person who sends the message, the person who causes it to be sent or the person who permits it to be sent has an existing business relationship or an existing non-business relationship with the person to whom it is sent;
(b) the person to whom the message is sent has conspicuously published, or has caused to be conspicuously published, the electronic address to which the message is sent, the publication is not accompanied by a statement that the person does not wish to receive unsolicited commercial electronic messages at the electronic address and the message is relevant to the person’s business, role, functions or duties in a business or official capacity;
(c) the person to whom the message is sent has disclosed, to the person who sends the message, the person who causes it to be sent or the person who permits it to be sent, the electronic address to which the message is sent without indicating a wish not to receive unsolicited commercial electronic messages at the electronic address, and the message is relevant to the person’s business, role, functions or duties in a business or official capacity;

Here's what it means. If you know someone personally or have done business with him or her, you can send them your newsletter as long as you offer them a chance to easily unsubscribe.

That does not mean you can hammer people with just listed emails every day: that would be commercial harassment and turn off consumers. Although you could probably get away with it with a big unsubscribe link, such aggressive mailing would be a very foolish way to treat your valuable list and at worst could get you into big trouble.

There's some more detail on exactly what an existing business relationship is in section 10.

(a) the purchase or lease of a product, goods, a service, land or an interest or right in land, within the two-year period immediately before the day on which the message was sent, by the person to whom the message is sent from any of those other persons;
(b) the acceptance by the person to whom the message is sent, within the period referred to in paragraph (a), of a business, investment or gaming opportunity offered by any of those other persons;
(c) the bartering of anything mentioned in paragraph (a) between the person to whom the message is sent and any of those other persons within the period referred to in that paragraph;
(d) a written contract entered into between the person to whom the message is sent and any of those other persons in respect of a matter not referred to in any of paragraphs (a) to (c), if the contract is currently in existence or expired within the period referred to in paragraph (a); or
(e) an inquiry or application, within the six-month period immediately before the day on which the message was sent, made by the person to whom the message is sent to any of those other persons, in respect of anything mentioned in any of paragraphs (a) to (c).

So any of your past clients with whom you've stayed in touch is fine, as are anybody who has emailed you or signed up at your website or even given you their card, knowing that you might send them email about real estate. I have never sought out "lists" to email to....everyone I email is someone who has contacted me in one way or another....

The important point is you have to have been in contact with these people recently and to continuously allow them to unsubscribe. Now is not the time to pull out those old addresses unless it's to send them an email asking them to pro-actively subscribe before July 1. Right now is your very last chance (doing so after July 1 could get you in big trouble).

Fast and loose players

If you've been playing fast and loose and have a lot of people on your lists you don't know, then you probably should send out an opt-in confirmation before July 1st. Or if you have not had a regular and obvious unsubscribe link, you might want to at least offer people an obvious chance to unsubscribe before July 1.

Somewhere in between

What can you do if you are still worried? In your next newsletter don't just include an unsubscribe link in the footer. Put a large button in the middle. Mine is right at the top and the first thing that you see. The button should read, "If you would like to unsubscribe from my news, please click here now." Ideally this button would lead to a "Manage your subscription page" as some people click almost any button just to see what it does.

Keep your small business or your consultancy growing. Don't panic over CASL and don't spam. 

Your host, Richard Silver

PS. Bonus tip: make your newsletters worth reading and if readers do ask to UNSUBSCRIBE, welcome it graciously, because there is nothing more important than solid customer relationships.

PPS. It will be interesting to see how business will try to circumvent these Laws. I know that the Government crack down on "Do Not Call" has not stopped the number of calls that we still get on our phone lines....it just moved that business offshore. Sadly even with "Do Not Call" restrictions on listings that request do not call...many of our members still call expiries as a business model and pay little to no attention when "Cold Calling". 

PPPS. Please remember that these are just my musings for what they are worth....comments?

2 Responses

  1. Mark Brodsky

    Hi Richard, great blog entry! One thing to note is that if realtors don’t have documentation that someone has consented (either through a sign up sheet or record from an email service provider) they do have to ask people to re-confirm if they want that permission to be express and not implied. As well, it’s my understanding that if people start to get express permission before July 1, they have a three year grace period to get their existing list compliant, but as of July 1, they should have a process in place to ensure that all people added to their database are compliant (clear language and documentation that they agreed to be added to a list).

  2. Greg

    Great information Richard! I completely agree with your comment that people are misguided when they are sending out emails forcing people to opt-in. The average open rate (according to mailchimp) is about 25% so by sending out an opt-in email whereby 25-40% of people open it, and another 50% actually opt-in this approach is likely to lead to some empty databases!

    Rather than sending contacts a forced opt-in email, we’re calling on behalf of our REALTOR® clients. Here’s a sample call: link to vyralfactory.com

    All the best,

    Greg.

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