Canada’s new anti-spam law (CASL) is a step in the right direction towards balancing corporate needs for online marketing and individual privacy.

CASL is part of an overall CRTC 2012-2015 plan to modernize Canada’s communication systems. In addition to the new anti-spam legislation, it includes reviews of radio policy, public alert systems, mandatory telemarketing fees and a whole bunch of other stuff. It’s expected that CASL will go into effect mid-2013 when Bill-C28 is passed into law. There are a lot of nuances to CASL — here’s the official Government of Canada website: http://fightspam.gc.ca.

There are some guidelines in CASL that apply to ensuring the sender includes their address, name of company, contact info, etc…  This specifically targets what we all think of as “real” spam — the Viagra, Cialis and Penis Extender offers.

Ultimately, the focus of Bill C-28 is not necessarily to reduce the amount of spam that Canadians get, although that’s a nice benefit. It’s about ensuring businesses are following best practices by giving them a legal framework by which they are required to do so. And giving law enforcement the tools they require to take out spammers (whether they are sending from Canadian servers or from servers outside of Canada).

The real thorn-in-the-side for most marketers is the notion of ensuring you have “express consent.” Again, it’s great that it’s coming into law, but it will significantly change how we have to behave as marketers.

Express Consent

CASL Bad not opt in mailing list StephdokinThe most important thing from a marketing perspective in Bill-C28 is the notion of “express consent.” Express consent means that you cannot send an email to someone that hasn’t explicitly opted-in to your mailing list.

For all you marketers out there (and there are MANY of us who transgressed) — we all create software download forms, white paper request forms, purchase forms etc… At the bottom above the [Submit] button we add another little checkbox: “[X] Subscribe to our monthly newsletter.”  This is known as “Opt-Out” — because we want more sign-ups, we default it to checked. Under Bill-28, this is NOT express consent. We now have to leave that little checkbox blank, and hope that our prospects / customers click it so we can send them emails.

Click here for some guidelines on the use of toggling as a means of obtaining express consent under Canada’s anti-spam legislation.

Penalties

Failure to comply with CASL comes with STIFF penalties. If you are a sender of non-consented emails, and are a corporation, you can be fined up to $10M. If you are an individual, you could be fined $1M. And the receivers of emails can sue you for $200 for each individual transgression  through a process I imagine will be on the CASL website.

The piece of legislation has been carefully crafted and based on the success that Australia and the U.K. have had implementing similar law (here’s some info on the global anti-spam privacy effort). The proposed law has been amended and revised a couple of times after getting public and corporate input, so it’s getting near the finish line. There are still lobbyists that are trying to water it down, but from what I’ve read it looks like it’s on track for 2013.

Although the Canadian Marketing association already recommends the best practices in CASL, my gut feeling is that many marketers have been so busy trying to generate leads that they’ve had their heads in the sand with Bill C-28.

U.S. Companies Unprepared for CASL

Interestingly, the CAN-Spam law in the U.S. allows for default [X] checkboxes on signup forms (i.e. “opt-out”). So, our brothers and sisters in the U.S. who have been doing the same thing we have been doing in Canada for years actually don’t need to change their behaviour for the U.S. marketplace. However, what if those U.S. companies still want to email to Canadians on their list? And that affects, oh, I dunno, EVERY online company in the U.S.?

According to a report by law firm Fasken Martineau DuMoulin LLP, despite the high cost of violation, 60 percent of American marketing executives had no knowledge of the forthcoming law, putting them squarely in the sights of the $10M fine.

As a resource to my American friends … here’s a fantastic Slideshare powerpoint comparing CASL with CAN-SPAM: CASL vs CAN-SPAM – Canada’s Anti‐Spam Law

What To Do

  1. Panic. This is a tectonic shift for marketing in Canada (and North America) — and you’re running out of time. Make it a priority in your organization to become compliant BEFORE it becomes law.
  2. Review CASL and make a roadmap. You still have time so use the links you find in this post to discover more. My initial thoughts are:
    • Re-capture as much of your existing prospect databases as I can with express consent.
    • Make sure all my email collection from now on is expressed consent with an opt-in.
    • Make sure I put into place processes to remove illegal emails from my database when I’m unable to get express consent, or when the time limit runs out (18 months from time of a purchase).
    • Lastly, I’d put an audit process into place that shows my adherence to the law in case CRTC comes a knockin’.
  3. Get opt-in’s from your prospect database. If you have a monthly newsletter strategy, the #1 call-to-action in the next six months should be “CASL is coming. We highly value your privacy. If you like our newsletter, click here to give us your express consent.”
  4. Get opt-in’s from your advertising subscribers. If you have an advertising list; i.e. you send information only when you want to sell or incent something (like a shoe company that sends an electronic catalogue every month), I’d expand my messaging in my communication to include some good content in addition to sales messages … then, you can use the tactic in #2 above. Otherwise, this will be your only hope: “CASL is coming. We highly value your privacy. But we want to continue sending you our ads. Click here to give us your express consent.” I can’t imagine you’ll see much clicking.
  5. Start a monthly newsletter. If you have a large prospect database and you don’t do any type of regular email marketing / newsletters, start NOW. Send a month or two without the “express consent” message so you buy a bit of trust (and hopefully you’ll have FANTASTIC content to make sure they love you) … then, by month three, when you’ve had some positive response, start asking for their express consent.
  6. Use up-to-date tools. If you don’t use a 3rd party email service like MailChimp, Vertical Response or Constant Contact to manage your email campaigns, consider it. They make a lot of the compliance pain go away when dealing with spam legislation. I leave you with this hilarious and to-the-point video from MailChimp regarding mailing lists: