So you’ve read our blogs on clinic marketing and are ready to get started on your first email campaign. But, there’s just one more thing, CASL compliance. While you might think of CASL as something only large clinic chains and multinational companies have to worry about, you’d be wrong. No matter how big or small your clinic is, if you’re going to send electronic communications to patients then you need to make sure you’re compliant with Canadian legislation. Here we’ll break down everything you need to know about CASL compliance at your clinic.
What is CASL?
Canada’s Anti-Spam Legislation (CASL) is a federal law that applies to all electronic messages sent by organizations (domestic or international) about commercial activity. Under this legislation, you require consent from message recipients before sending electronic communication to them. That includes all messages sent to Canada, from Canada or within Canada. That means if your clinic operates in the United States but has a large Canadian clientele, you need to ensure you obtain consent from your Canadian patients before sending electronic communications.
What are electronic messages?
CASL makes a distinction between electronic messages and commercial electronic messages (CEMs). An electronic message is “a message sent by any means of telecommunication, including a text, sound, voice or image message.” Examples of electronic messages include:
- Text message
- Social media
What are commercial electronic messages?
A commercial electronic message (CEM) is “an electronic message that… it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity.” Commercial activities are defined as:
- Offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land
- Offers to provide a business, investment or gaming opportunity
- Advertises or promotes anything referred to in the first two points
- Promotes a person, including the public image of a person, as being a person who does anything referred to in any of the above points
Keep in mind that this applies to both the message itself as well as any links included in the message. For example, if you avoid making a direct sell in your email but link to your website that does promote commercial activity, then you have just sent a CEM. All of these intricacies are taken into account with Engage, so you never have to worry if you’ve accidentally sent a CEM without permission.
What types of messages are considered to be CEMs?
Even if you’re not looking to start an email marketing campaign at your clinic, you will still require consent to send email or text messages that contain:
- Sales and other promotions
- Clinic announcements
- Educational resources like stretching guides
- Updates about your clinic
- Changes to your policies like billing updates
Could my clinic’s communications be CASL exempt?
It’s possible that some of your clinic’s current electronic communication could be CASL exempt if:
- You have a personal or family relationship with the individual you’re sending the message to
- The communication is sent to a person who is “engaged in a commercial activity and consists solely of an inquiry or application related to that activity”
- The communication is sent in response to a request, inquiry or complaint from the recipient
- The communication is solicited by the recipient
- The communication “facilitates, completes or confirms a commercial transaction” that the recipient previously agreed to.
By no means is this a complete list of CASL exceptions, for a full list of CASL exceptions Click here.
How do I become CASL compliant?
CASL requires you to get consent from your patients before sending messages. But, that’s not all; there are different kinds of consent.
Implied consent comes from an existing business relationship. The Ontario Chiropractic Association has outlined some examples of this type of relationship on their website here. Examples of existing business relationships include:
- Individuals who buy products or services from your business
- Suppliers of goods and services to your business
- Practitioners who lease space in your facility
- Individuals who have inquired about entering a business relationship
If you already have a business relationship with someone, then you may have implied consent to send CEMs. However, implied consent does expire after 2 years unless the recipient ends the consent before then (say by unsubscribing to your newsletter). This is why express consent is a better option.
There is also express consent, which never expires but can be withdrawn (again by unsubscribing for example). Express consent is pretty straight forward, it’s when you have requested permission to send CEMs, and the recipient has actively given you consent. A common example of express consent is the confirmation email you may receive after signing up for a newsletter.
How do I get express consent?
You can only get express consent if you ask for it. That means that you will have to reach out to your entire customer base and request consent to send them future messages. According to section 10 of the legislation, you must include in your request for express consent:
- The purpose or purposes for which the consent is being sought;
- Prescribed information that identifies the person seeking consent and, if the person is seeking consent on behalf of another person, prescribed information that identifies that other person; and any other prescribed information.
If this is all beginning to sound like a lot of work, then Engage might be right for you. It’s a fully CASL compliant, automated, and customized patient email marketing for clinics.
Many clinic owners’ response to CASL requirements is to simply stop sending emails or text messages to patients. This response is becoming increasingly shortsighted and difficult to do, as 85% of patients want more electronic communication from their healthcare providers. We understand that marketing your clinic is challenging; between CASL requirements, PIPEDA requirements, and your own regulatory college’s requirements it can be hard to know where to start. That’s why we developed Engage as a hassle-free, easy to use solution to marketing your clinic.
An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23 (2010). Retrieved from http://laws-lois.justice.gc.ca/eng/acts/E-1.6/FullText.html
CognisantMD. (2017). Automated, Paperless Email Consent from your Patients. CognisantMD. Retrieved from https://www.cognisantmd.com/email-consent-in-healthcare/
Kingsmill, S. (2017). Canada’s Anti-Spam Law (CASL) FAQ. Deloitte. Retrieved from https://www2.deloitte.com/ca/en/pages/risk/articles/canada-anti-spam-law-casl-faq.html
Ontario Chiropractic Association. (2017). CASL: Canada's Anti-spam Legislation. Ontario Chiropractic Association. Retrieved from https://www.chiropractic.on.ca/members/managing-your-practice/legislation-regulation/casl-canadas-anti-spam-legislation/