When suggesting email marketing recently to a colleague over lunch, she looked over her shoulder as if someone would catch us and whispered, “isn’t that banned now?” Like many businesses, her company had stopped sending promotional emails to clients and prospects under the wrong impression that email marketing is now illegal. Indeed, since 2018 when anti-spam laws such as CASL (Canadian Anti Spam Law) and Europe’s GDPR (General Data Protection Regulation) went into full effect, many businesses and organizations have been left rightfully fearful of email marketing.

The huge potential fines have also succeeded in putting the big chill on many companies’ email marketing, especially those whose target market includes Canada and the EU.

But contrary to common fears, you can still use email marketing successfully for communicating to your past, current and new potential clients. Thousands of businesses in the US, Canada and the EU are still email marketing successfully, all within the bounds of the law!

Understanding Canadian and US Anti SPAM laws: CAN-SPAM and CASL

With the old US CAN-SPAM laws, you could pretty much put anyone on your email list, if you allowed them to opt out by unsubscribing. But under GDPR and CASL, you are required to ensure everyone on your email list has opted in, by getting their express consent.

In Canada this means written/ digital or oral, documented consent, and maintain records of them doing so. In Europe, express consent is only written/ digital, and must be documented and recorded. With GDPR, you are also supposed to provide more disclosure over how the collected contact info will be used, as well as allow someone to be fully purged from your database forever, known as “the right to be forgotten”, if they so request.

As you can probably tell, the laws range in severity from CAN-SPAM as the most permissive, to CASL which is more “middle ground”, to the most robust and restrictive GDPR. These laws also do carry significant penalties. While enforcement action is still relatively rare, a consumer complaint can trigger a government investigation. Companies have investigated by the Canadian Government and fined up to $150,000 for violations in recent years. GDPR carries even heftier fines for violations (up to $20 million Euros!)

CASL versus GDPR

CASL gives businesses an “ease in” into compliance as it allows “implied consent” permission for up to two years, at which point you need to ask your list member for their express consent. Implied consent means you can email some people who didn’t give you written permission, but only for a limited time, and within specific circumstances.

Implied vs. Express Consent – Get Permission!

The key to staying in compliance with CASL, and still running an effective email marketing program is understanding when you have implied or express consent to email your customers or prospects. You can send commercial messages to current, past or potential clients when you have implied consent. This means they’ve either a) made an inquiry about your products or services, b) purchased from you in the past, c) their email is conspicuously published (this could mean it is public on their own website or in a printed directory), or d) you are emailing them in their professional capacity (covers most B2B emails). You can of course, also email someone once you have express consent. This means they have expressly given you permission to email to them, by digitally ‘signing’ a form on your site, or indicating their permission in writing through other means (i.e. you can make it part of your regular service contract or quote request form).

For more on complying with this legislation, check out the Canadian Government CASL site (http://bit.ly/CASL2020) or the EU Site (http://bit.ly/GDPR2020) or consult your legal advisor.

GDPR – The Toughest Anti SPAM Legislation

The EU’s anti-SPAM legislation, GDPR, takes these permission requirements yet another step further, GDPR also doesn’t recognize any implied consent. Your GDPR compliant subscription forms need to show clearly how the person’s contact information will be used and for what types of messages (i.e. email, mobile, direct mail, etc.). Additionally, you need to install an “accept cookies” consent form or pop up on your website if you are doing any kinds of site visitor tracking or monitoring, which includes using Google Analytics, Google Ads or Facebook Ads retargeting/ remarketing on your website.

Example of GDPR compliant “cookie consent” form on napkin marketing website.

Being a Smart…and Law-Abiding Email Marketer
The good news among all this legislation talk, is that you can still do email marketing, grow your list and communicate with clients and prospects, all while steering yourself and your organization clear of complaints and scary fines!

As a Mailchimp Expert agency doing email marketing for many US and Canadian businesses, we’ve compiled these 12 tips to help you build up express consent opt-ins, and be aware of implied consent relationships and opportunities to email (within US and Canada). Once you’re aware of the rules around consent, you will see there are still many opportunities to develop effective, CAN-SPAM, CASL and GDPR compliant email marketing programs that get results!

1) Get permission to email in creative ways. Provide multiple opportunities to join your opt-in list through your website.

While it seems obvious, most businesses are very passive about using their website to grow their opt in email lists. If a customer called you, you wouldn’t get off the phone without asking for their tel number for future correspondence. Similarly, you want to make sure your website asks for an opt in email on pages that get the highest web traffic, and converts that prospect by getting their email address, before they exit the site.

Four top areas of your site where you should be asking for an email address and permission to opt-in to a list are:

  • Your contact us page (with a checkbox where people can indicate their permission to be emailed when they contact you).
  • An enews sign up form at top of your website.
  • An enews sign up form on your blog
  • The check out page of your website – if you have an ecommerce business.

2) Ask for emails and permission in your offline transactions and communications

If your company takes part in trade shows and events, starting an email list can be as simple as setting up a contest draw-box (with clear signage on the contest form or collection box indicating that the contest they’re entering enrolls them in your email list).

Another method is having your phone reception service and salespeople always ask for a customer’s email when providing a quote.

I recently got about 5 quotes to repave my driveway. Driveway paving services are very aggressive competitors because each asphalt company essentially provides the same type of service. and paves with the same equipment. But I did notice one thing: None of the salespeople or contractors who came to my house to quote ever took down my email address or followed up by email. Most were in touch by text or phone. This is typical for the renovations industry and for home service contractors who work out of their car or truck and don’t turn on their computer on a day to day basis. It’s a texting world when it comes to home renovators. And I get that. But by ignoring email, home service business owners are missing a huge opportunity to market to already qualified clients.

These small businesses spend so much money attracting qualified leads, advertising in flyers and weekly direct mail, running Google AdWords, and eventually sending a salesperson to the house to provide a quote. But they then fail to take down contact information they can leverage in the future. A promotional email to advertise seasonal specials, to request a Google + or Angies List review (after a job is done), or keep in touch for future business and referrals, is much more valuable to the business than a text message in a salesperson’s phone. Even without getting express consent, under CASL, you are also allowed to email clients for up to 2 years if they have indicated interest in your services with a quote request. So why not take the opportunity?

3) Do include photos, images and videos in your email

Once you do have their email address, make the email marketing you send out engaging and interesting with images and video. While some businesses and professionals have done quite well with text only email, we would advise that unless you are building a “guru based” business – where you and your personality are the “brand” , most businesses can benefit from having images on their email. Please note that we differentiate between emails used by your sales folk, and emails for marketing and lead generation. Sales follow up emails can be basic text only emails, or only contain a logo with the salesperson’s signature at the bottom. But most marketing emails benefit from at least a header image. A more visually engaging email will get more opens, and pass alongs and will help grow your list organically.

4) Do make your emails mobile responsive

As a Mailchimp email marketing and web design shop, most of our client’s emails are automatically responsive due to using the Mailchimp platform. However, I still get asked regularly by clients to email out a PDF attachment or a flyer the client had developed for print advertising use. Not only will these trigger spam alerts intended to keep out virus attachments, many recipients will not be able to open your promotional email properly on their cell phone if it isn’t mobile optimized. An email that your current subscribers can open easily on their mobile is more likely to get clicked and passed along to others who may become subscribers.

Here are 2 client samples of mobile responsive email templates we developed:

5) Do make your email customized to the recipient

Addressing an email with the recipient’s name (Hi Bob!) as cheesy as it seems, still vastly improves opens and click through rates for the email marketing campaigns we work with. You can improve your results even further, with keeping targeted list segments or groups in Mailchimp, and publishing email content specific to your different customer groups. Relevant, personalized emails mean higher open rates. And higher opens mean higher engagement, and pass alongs, which bring more subscribers.

6) Do have an opt-in content giveaway on your site

Emails are a precious and rarified gift nowadays… and must be earned before prospective subscribers turn them over. One of the best ways we’ve found to grow email lists is with a content giveaway, such as a short book with free tips on whatever your expertise is in, which provides value for your prospect. The ebook on my site has allowed me to passively grow my list into the thousands of subscribers. A content giveaway can be access to an exclusive video, a webinar invitation, a downloadable eBook or guide, or access to an automated email series “course”. Once it is set up, you will be able to collect email subscribers as people will be incentivised to sign up for your content giveaway.

7) Install a LiveAgent/ Live Support Chat on Your Site

Take advantage of real time traffic by engaging visitors online with a live agent on your site. Most live support software can be set up to ask for a client’s email address and permission for further contact at the start of a chat. This, in turn, turns the conversation into an inquiry, which can give you the express consent necessary to add them to your list.

8) Add opt in forms on your most popular blog posts.

Dig into your web analytics and find out what your most popular blog posts and pages are. Next, leverage those pages by adding in an offer at the bottom of each one where the visitor can join your email list.

9) Don’t be afraid to email B2B contacts

For B2B marketers, CASL provides some flexibility to email business contacts whose email addresses are both a) published online in a conspicuous place, such as your LinkedIn contacts and b) their profession relates to what you’re emailing them about, such as a business buyer and supplier. Under CASL this constitutes implied consent to contact them.

10) Use a CRM system

Keeping track of prospects and opportunities with Customer Relationship Management (CRM) software can be one of the best ways to grow and maintain an email list and keep track of sales opportunities. If someone is in your CRM system because they made an inquiry about your service, or because their email is conspicuously published, and your message relates to the recipient’s functions or activities in a business or official capacity, this constitutes implies consent under CASL, and you can email them for up to two years. However, make sure you maintain permission records to back this up and always respect unsubscribe requests.

11) Build your list with social media

Think of social media followers as customers “flirting” with your brand, while the ones on your email list are the ones who you have a more serious relationship with. Encourage your social media followers to become email subscribers by promoting your eBook, email sign up form or blog post with email permission form at the bottom in your social media posts.

12) “Rent” an opt in email list by having a publisher email on your behalf

While buying an email list is not recommended, there are many reputable publishers that maintain clean, opt-in email lists. If you don’t have your own list, and want to send something out quickly, you can investigate using a service like Scott’s Directories who can email your promotion to their list on your behalf. Note: Always make sure the publisher is following CASL and GDPR laws. Ask to see examples of their previous mailings to check for unsubscribe messages, etc. This works best for B2B email campaigns where the publisher takes the names and emails of businesspeople and trade contacts from public directories and sources.

NOTE: The above article offers general marketing strategies, but should not constitute legal advice. I am merely a digital marketer, not a lawyer! Always check with your legal advisor on your specific circumstances to ensure your organization and marketing activities are in compliance with SPAM and privacy laws.

Adina Zaiontz is Director and Founder of Toronto-based, a digital marketing and web design firm, specializing in helping businesses reach new customers online, by effectively sharing their business and brand story, and leveraging social media, email and SEO. Prior to starting her agency, Adina led marketing teams and initiatives at Yahoo! Canada, Rogers Media and some of Canada’s leading B2B publications.

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