Daniel Burstein

Email Deliverability: 9 lessons about Canadian Anti-Spam Legislation

CASL.

You might think the “C” stands for confusion, or perhaps concern, at least on the part of marketers.

canada-anti-spam-legislationThose letters stand for the Canadian Anti-Spam Legislation. This law applies not only to Canadian companies, but email marketers anywhere in the world sending messages to Canadian subscribers.

Since this is probably the strictest spam law ever, marketers are growing concerned. Because marketers aren’t lawyers, many are also confused about what they actually have to do.

I’ve spent the past few weeks gleaning insights from experts in the field, and here’s what I’ve learned so far.

 

Lesson #1. A blog post is not a legal opinion

Some marketers have been reading blog posts and other content to try to understand what they must do to comply with CASL.

No piece of content can replace legal advice, including this blog post. If you think there is legitimate exposure for your company, the best thing to do is get legal advice.

CASL is a law, not just an industry best practice or a good idea. If your company breaks the law, it can be legally liable and punished. As with any law, ignorance is not a legal defense.

According to FightSpam.ca, “Penalties for the most serious violations of the Act can go as high as $1 million for individuals and $10 million for businesses.”

The Canadian Radio-television and Telecommunications Commission (CRTC) is chartered with enforcing the act.

That said, I’ve included some related reading at the end of this blog post in the “You may also like” section to help you dive deeper into this complex regulation.

Lawyers aren’t the only place you can get some help.

“Become informed and stay on top of it. If you are using an ESP and they are providing any sort of CASL assistance, take advantage of it,” suggested James Koons, Chief Privacy Officer, Listrak.

 

Lesson #2. Don’t overreact

Trusting any blog post or other content at this point is especially fraught because, while CASL is law, interpretation and enforcement of the law is still ongoing. It’s still all very new.

“I think you have to use some common sense.”

That’s what Shaun Brown, a lawyer and partner at nNovation LLP, a Canadian law firm, advised when I spoke with him about CASL. Shaun also went on to say:

Fortunately, the government decided to delay the private right of action, because the private right of action is a whole other ballgame. It creates incentives for lawyers to find technical violations. The CRTC, we have to assume and I do believe that they’re going to be reasonable and it’s not their goal to try and catch legitimate businesses in technical violations or in a gray area and to really try to punish them. I think it’s going to be their goal to try and reduce some of the worst practices we see out there.

So where there are a lot of gray areas, I don’t want to see people being scared to use email marketing because of these gray areas and lack of certainty. We do have to have a little bit of faith and assume that the CRTC is going to be reasonable on some of these issues.

 

Lesson #3. Keep doing the basics

There are a few basics in how you send your emails that you should be doing anyway, thanks to CAN-SPAM and being a savvy, successful and ethical marketer who cares about deliverability.

I say should, because last time we surveyed marketers about their email practices, only 62% provided an easy unsubscribe process – as the rest simply beg recipients to hit the “SPAM” button and cause major deliverability problems.

Does your email template (perhaps in the footer) include:

  • The ability to unsubscribe?
  • Your company’s physical address?
  • An email address, telephone number or Web address?

 

Lesson #4. Understand the two types of consent

Implied consent and express consent.

Implied consent tends to be when you’ve had a business relationship with recipients in the past, like a purchase or donation.

Express consent is when they specifically opt-in to your list. It’s a good idea to check your opt-in forms and make sure you are now getting express consent.

“Make sure you put expiration processes in place to remove subscribers that you are unable to get express consent from, or when the time limit for implied consent runs out. Basically, you should have a solid, auditable process in place that shows your CASL compliance in the event of an enforcement action,” James said.

 

Lesson #5. Request further consent from some people on your list

This is the part marketers tend to be most worried about, and for good reason.

As James explained, you may need to send a specific CASL opt-in email message to people on your email list (and gain their express consent through that email) before sending further commercial messages if:

  • They are Canadian
  • You are sending commercial electronic messages (see Lesson #7 for more on that)
  • You do not have a record of express or implied consent

“When launching such a campaign … target only those recipients who you feel you do not have a verifiable consent for. This will ensure you don’t risk losing a good portion of your subscribers and you are only targeting the ones that you need consent for,” James said.

For those you doing email, James suggested you “honor unsubscribe requests from folks who don’t wish to receive your communications and remove those who simply don’t respond.”

 

Lesson #6. Take the opportunity to cleanse your list

“I like to remind marketers that if they are sending prior to CASL’s enactment (July 1, 2014) with implied consent, they have until July 1, 2017, to move these subscribers to express consent should they so choose – they can keep sending,” James advised.

Even so, win-back campaigns and list cleansing can have many benefits. CASL could be a good opportunity for you to audit your list and see how active it is, even if you aren’t forced to by CASL.

“This is a great time to review your database and see who you are really sending out to,” said Ben Baker, President, CMYK Solutions.

 

Lesson #7. Evaluate your newsletters to see if they are promotional

This isn’t a legal opinion, but not every email you send is necessarily a commercial electronic message (CEM.)

Marketing, promotional and sales messages likely are CEMs.

However, newsletters that are content-only likely aren’t, and wouldn’t require a re-opt-in send to comply with CASL.

 

Lesson #8. Apply this law to other messages

CASL covers all commercial electronic messages, including text messages as well.

 

Lesson #9. See the forest for the (maple) trees

While CASL is a law and it is easy to get bogged down in the details, you should understand the spirit of the law, not just the letter of the law.

Really, what the government of Canada came up with is a good idea for every marketer – only send emails to people who want to receive it from you. Everyone should agree on that.

The challenge with CASL isn’t the spirit of the law, then. Instead, it is the record-keeping and restrictions on how you get email opt-ins that may be difficult for many companies.

“Make sure you are keeping an audit trail when collecting consents (IP address, date/time, URL/location, etc.) as the burden of proof lies on the sender. You should be keeping track of the date of your inquiries, purchases or contracts. Also track the type of consent,” James said.

While some lawyers can be myopic and only focused on legal regulations and risk reduction, I really appreciated how Shaun was able to see the big picture from a marketer’s point of view. I’ll leave the final words on the topic to him:

Think about what these consumers will expect. Don’t surprise consumers. If it feels right, then maybe do it. If it doesn’t feel right, regardless of the fact that it’s technically compliant, then it’s probably something you shouldn’t be doing.

 

You might also like

Canada’s Anti-Spam Legislation [From the government of Canada]

CASL Regulatory Impact Analysis Statement [From the government of Canada]

Bill C-28: Canada’s Anti-Spam Legislation [From the government of Canada]

CASL’s Impact on Email Marketers [From ClickZ]

About The Law [From the Government of Canada]

Express Versus Implied Consent [From the government of Canada]

MarketingSherpa Email Summit 2015

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