CASL: The New Canadian Anti-Spam Legislation

By Hessie Jones

What’s going to turn the communications industry upside down in Canada and beyond?

CASL: The New Canadian Anti-Spam Legislation that takes effect July 1, 2014.

I’ve worked in the direct marketing industry since the early 90’s so I am aware of proper list building, proper opt-in, and disclosure on owned lists as well as purchased lists.

Then when email came along, permission marketing brought yet another level of complexity that marketers had to adhere to.

The Black and White is More Like Grey

What makes CASL frustrating is the fact that it has lumped ALL communication into one bucket. Social Media throws a wrench in this whole legislation that purports to understands the context of commercial messages among all media.

What it doesn’t get is that in this day and age, there are more grey areas when defining commercial messages, especially as it relates to the evolving media.

This general privacy legislation applies to B2B as well as B2C communications. This will include all electronic messages: Text, SMS, Twitter, Facebook and email “ anything “commercial” in nature.

The definition of commercial is quite broad and can include solicitations for donations, political memberships, gaming or even bartering activities.

Penalties are Significant

Each violation can mean fines up to $1million for individuals and up to $10million for companies. What’s more by 2017, this leaves organizations vulnerable to class action lawsuits.

Consent could be the killer!

What makes this a big deal, especially as it relates to social networks, is the mandate that every electronic message sent for commercial purposes can ONLY be sent with the consent of the intended recipient. While this can be express (specific opt-in box) or implied (an existing relationships where all prior electronic messages have an unsubscribe mechanism), it’s up to the company or organization to disclose the type of messages the recipient is consenting to receive.

What makes this all the more significant is CASL’s inability to distinguish commercial versus “conversation” among friends. A tweet does NOT infer context. A stream does. Unless CASL has the ability to police all potential violations, how can this possibly be enforced?

I had a discussion about CASL among friends who were finding more of these grey areas. Let’s put this in perspective: Purchased lists are now at risk. With CASL, no one would risk even purchasing a list. That industry will die.

In addition, it puts new lead technologies at risk. Where social media has allowed companies to mine inquiries from consumers, this evolved space may grind to a halting stop if CASL becomes imbedded in all our communication decisions.

As my friend Daniel Hebert, noted:

“If someone tweets out, “What’s the best TV out there”? Can a company like Sony Canada answer them and lead them to a landing page? Or would that be unsolicited? Or would that be implied consent because the originator of that tweet was open to receiving the information?”

Apparently, in the case of CASL, consent “must be explicit” in ALL cases. And that’s where the grey areas must be addressed. In Twitter, if someone doesn’t want to receive @replies or messages from an account, they can simply block them or report them for SPAM. This legislation makes it increasingly complex and now there is a potential that commercial messages sent between friends may be subject to penalty.

More Guidance Please

My friend, who has asked to remain nameless, works for a company that not only utilizes database promotions, but also evolved digital communications. Here was his take on what CASL means for this industry:

“CASL is about to send Canadian Digital Business back to the stone ages…the intent was spam…but this blunt, overreaching, overkill and unimaginative piece of legislation will impact every attempt to deliver smart and engaged digital media and neuter Canadian businesses ability to compete…”

The penalties have left many companies scrambling to ensure compliance by July 1st. More importantly, there will be more hesitancy among marketers to evolve communications to include new media.

I wouldn’t assume a media uprising yet….. but until the federal government “gets” new media and understands how consumers and business use it, and more importantly, how CASL can gravely impact on the Canadian market, will they be open to evolving the law instead of stifling business?

It will definitely be interesting to watch.