Thursday, January 23, 2014

One of the biggest challenges facing web marketers is staying compliant with anti spam laws. It’s a tricky area, and even the most well-intentioned, by-the-book marketing departments can run afoul of the law if they don’t remain alert to changes in the law.
Legislators don’t exactly have it easy either. The rate of change in digital technologies is without precedent, and the slow-moving wheels of traditional lawmaking infrastructures are not equipped to deal with such a rapid evolution. Nor are they equipped to tackle the borderless, global context in which e-commerce resides.
So it is with great interest that the online world awaits this year’s roll-out of Canada’s Anti-Spam Law (CASL). The law will take effect in gradual steps starting from July 1, 2014. Some elements will not take effect until 2017.

CASL aims to turn some of the grey areas that have always dogged anti-spam legislation into solid monochrome. In-keeping with new global practices for commercial email, the watch-word is “consent” – and explicit consent at that. Implied consent is no longer sufficient. The key requirements of CASL are:
  • Permission. Implied consent is not acceptable for gathering permission to communicate, although there are several exceptions to the rule, including pre-existing business relationships.
  • Private right of action. One of the most important pieces of legislation from the consumer’s point of view, this will allow individuals to bring a lawsuit against companies that breach the law, and give them the right to apply for actual-loss compensation and up to $200 daily for contravention of the provision. This will not take effect until July 1, 2017.
  • Three year grace period for consent. A neat way of avoiding clogs in the legal process that could be caused by frivolous or trivial lawsuits, the law allows implied consent during this period but demands express consent to continue communication after that period.
  • Recorded proof of consent. Businesses need to operate an unsubscribe mechanism and keep a record of express consent.
The major achievement of Canada’s legislation is the union of two existing strands of the law: privacy law and telecommunications law. Until now, legal practitioners have lacked a comprehensive framework for dealing with web-based commerce.
Among G8 countries, CASL is by far the toughest of its kind. It tackles head-on the problems posed by the web’s nebulous nature by applying extra-territorial strictures – the first of their kind in the West. Once the legislation kicks in, any electronic message sent from a Canadian IP address will be subject to the law, regardless of its destination. Unlike corresponding legislation across the rest of the world, CASL is not limited to ‘harmful’ messages that contain some element of fraud or deceit. It applies to any commercial solicitation conducted without the recipient’s prior consent. This has staggering implications for businesses working to the 90s marketing model of sending mass emails to thousands of individuals in the hope that a small fraction of them will respond.
Whether or not other countries will fashion their legislation after CASL remains to be seen. It’s likely that the US will watch and wait while Canada acts as a digital guinea pig. The existing US laws, CAN-SPAM, are significantly less harsh. The most important difference is that CASL requires consumers to opt in to all electronic communications, whereas CAN-SPAM follows the opt-out, unsubscribe method of consent. This single change of approach may come to revolutionize the way online marketing is conducted in the future.
Mobile marketers will be looking on at their panic-stricken desktop-only counterparts with some sense of schadenfreude. Text marketers were well ahead of the curve in terms of opt-in etiquette. For mobile, consent has always been part of the game plan, and any marketer worth their salt was more than ready for the opt-in laws brought about as part of last year’s Telephone Consumer Protection Act.
If desktop marketing teams can learn anything from their mobile brethren, it is the value of positive creativity when approaching legislative challenges that threaten to rock the boat. Canada-based enterprises will certainly give everyone a lesson in how – or how not – to handle major changes to the way they do business. Either that or they’ll relocate south of the border in June. Whatever happens, it’s going to be an interesting year…