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Posts Tagged ‘Marketing Law’

Email Deliverability: 9 lessons about Canadian Anti-Spam Legislation

July 25th, 2014
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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.

Read more…

Online Advertising: Behavioral Ads Threatened

December 28th, 2010
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There has been a lot of talk this month about the future of behavioral advertising and privacy on the Internet. This coming year could change if and how your team uses ads that target people’s browsing history.

The Federal Trade Commission published preliminary proposals for targeting online ads on Dec. 1, and the Department of Commerce published preliminary proposals for protecting consumer privacy on Dec. 16.

These statements came about two months after the Digital Advertising Alliance (DAA) launched a program that lets users ‘opt-out’ of behavioral tracking. The DAA is a coalition of industry groups that supports industry-based self-regulation for behavioral ads.

Outcome far from certain

What does all this mean? No one is entirely sure. The FTC and the Commerce Department’s proposals are not laws, but folks from the FTC have been speaking with Congress about the issue. And FTC Chairman Jon Leibowitz has expressed dissatisfaction with the industry’s self regulation.

This much is clear: behaviorally targeted advertising is raising privacy concerns. Consumers are seeing the shoes they just shopped for appear in ads on other websites, and that is freaking some people out. Two solutions have been floated:

– The FTC’s preliminary proposal: have a browser-based solution that signals to websites that a consumer has ‘opted-out’ of tracking

– The DAA’s program: let users ‘opt-out’ by clicking on an icon next to an ad. This program has been adopted by at least one major media-buying agency.

The potential for impact

Should either of these options — or some other ‘opt-out’ system — become a wide-spread reality, it could have serious implications for online advertising. Here are two stats to consider:

– An Interactive Advertising Bureau survey of ad agencies earlier this year found that 80% or more of digital advertising campaigns were touched by behavioral targeting.

– A USA Today/Gallup poll in December found that 67% of U.S. Internet users say advertisers should not be allowed to match ads to their browsing history.

A tremendous leap of faith is not required to assume that a sizeable portion of that 67% would gladly opt-out of all behaviorally based ads.

What you can do in the meantime

While Washington and the industry figure out what, if anything, will change, your team should look at its marketing and understand the importance of behavioral ads and tracking in your programs.

Consider what would happen if the ads stopped working as well, stopped working completely, or did not change — and what you should do in each case.

Also, talk to your agencies, affiliates and ad-networks. Find out what this means for the marketing they do on your behalf. The last thing you want to do is to be caught off guard by any changes.

Related resources:

Follow the FTC’s Street Team Guidelines: 4 Recommendations for Offline and Online Promos

FTC’s New Endorsement Guidelines: 6 Key Areas to Examine

The Google Slap: Affiliate Marketers must stay in compliance with Google and the FTC