A customer forwarding your newsletter from their own inbox is generally sending their own message. A website form that emails a friend is yours, and needs consent or the referral exemption's conditions.

Two kinds of forwarding

Many newsletters end with a line inviting readers to forward the email to a friend. Some add a button that opens a form, where the reader types a friend's address and the mailing service sends a copy.

Websites do something similar with referral programs. A customer enters a friend's name and email, and the site sends the friend an invitation, often with a discount.

These look like the same idea. Under CASL, Canada's anti-spam law, they can be quite different things.

What follows is general information about how the rules apply, not legal advice.

What a commercial email needs

A commercial email is one that encourages buying something, and a discount on a first visit certainly counts. Sending one generally requires all of these.

Consent is where forwarding gets complicated. The friend never agreed to hear from the business, so the questions are who is sending and whether an exception applies.

When a customer forwards it

CASL does not cover a message one individual sends to another with whom they have a personal or family relationship.

So a customer who forwards your newsletter from their own inbox to a friend is generally sending their own message. You did not choose the recipient or send anything.

That changes as the business becomes more involved. CASL also prohibits inducing or causing someone else to send a message that breaks the rules.

A reward for forwarding, a form that collects the friend's address, or a ready-written message all move the business closer to being treated as the sender.

The referral exemption

The regulations under CASL include an exemption written for referrals. It covers the first message a business sends to someone after a referral, without their consent, if several conditions are met.

The person who made the referral must have a relationship with the business, such as being a customer, and a relationship with the friend, such as being family or a personal friend.

The message must give that person's full name and say that it is being sent because of their referral.

It still needs the identification and unsubscribe that every commercial email needs. And it covers one message only; anything after that needs the friend's consent.

Where referral forms go wrong

Most referral forms were built for marketing rather than for these conditions, and they fail in predictable ways.

The invitation does not name the customer, or names only a first name. A reminder follows a few days later, and another after that.

The friend's address is quietly added to the newsletter list, and nothing asks whether the customer actually knows the person they entered.

Each of those turns a covered first message into one that needs consent the business does not have.

A worked example

A dog daycare with a fenced yard and two indoor play rooms offered its clients a free day for every new family they referred.

Its website had a referral form. A client typed in a friend's email address, and the site sent the friend a message headed "Your first day is on us", followed by two reminders a week apart.

The message did not say who had made the referral, and every address entered also went into the monthly newsletter list.

The problem surfaced when one recipient replied asking how the daycare had her address. The client who entered it turned out to be a former colleague she barely knew.

The owner rebuilt the process. The invitation now gives the client's full name in its first line and says it was sent at their suggestion, and there are no reminders.

Friends stay off the newsletter list unless they sign up themselves. The front desk also keeps printed referral cards, which clients hand over in person.

A quirk of forwarded newsletters

Most newsletter links are tied to the person they were sent to. When a customer forwards the email, those links travel with it.

A friend who clicks unsubscribe in a forwarded copy may remove the customer who sent it. A link to update preferences may show the customer's details to someone else.

Mailing services handle this differently, so test it: forward a newsletter to a colleague and see what each link does.

Referrals customers deliver themselves

The simplest referral programs keep the business out of the sending altogether.

A printed card handed over in person, a personal code the customer can mention, or a page the customer links to from their own email all leave the friend free to come to you.

When the friend books or asks a question, the conversation starts properly, and an enquiry gives implied consent for six months.

Rewards remain fine for referrals that become customers. The caution is mainly about rewarding people for sending emails.

Why it matters more next July

CASL's private right of action is scheduled to take effect on July 1 next year. From then, recipients of messages that break the rules are expected to be able to sue the business behind them.

An unnamed referral email followed by two reminders is the kind of message that invites a complaint. Fixing the form now takes an afternoon.

The counter-case

A business with a newsletter but no referral form or reward has little to change. A plain invitation to share it, forwarded by customers from their own inboxes, keeps the business out of the sending.

Referral programs are worth having, and nothing here argues against them. The point is that the friend hears about you from the customer, or from one properly identified message.

Name the referrer, send once, keep friends off the list, and prefer referrals that customers deliver themselves.

Before the next referral

  1. Find every forwarding or referral feature you use.
  2. Add the referrer's full name to invitations.
  3. Say the message follows their referral.
  4. Remove reminders sent to referred friends.
  5. Keep referred addresses off your newsletter list.
  6. Test the unsubscribe link in a forwarded newsletter.
  7. Offer cards or codes customers pass on themselves.

Step five is the one most often missed. The exemption covers a single message, and a friend's address added to the list turns every newsletter after it into email sent without consent.

Separating messages that need consent from those that do not is covered in unsubscribes that should not stop order emails.

Frequently asked questions

Is forwarding a newsletter covered by CASL?

A customer forwarding it from their own inbox to someone they know is generally sending a personal message. Rewards, forms or ready-written text bring the business closer to being the sender.

What is the referral exemption?

It covers the first message after a referral by someone who knows both you and the friend, if it names the referrer and says it follows their referral.

Can I send reminders to referred friends?

Not under the referral exemption, which covers one message only. Anything after that needs the friend's consent, for example from a booking, an enquiry or a sign-up.

Can referred addresses join my newsletter list?

Only if the friend signs up or otherwise consents. Adding them automatically turns every newsletter after the first message into email sent without consent.

Why test a forwarded newsletter?

Links in a newsletter are usually tied to the original subscriber, so a friend clicking unsubscribe in a forwarded copy may remove the customer who forwarded it.

What is the safest referral design?

One where customers pass on a card, a code or a link themselves, and the friend contacts you. Rewards for new clients are fine; rewards for sending emails are riskier.

West Coast Media Solutions Inc. provides web design, web development, hosting, digital marketing, and business consulting to organisations across Canada, drawing on more than twenty-five years in the field.

Referral form sending emails for you?

Send us the form and a sample message. We will check the wording and the follow-ups against the referral rules.

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