Industry Updates

Is Canada’s eleventh-hour CASL PRA halt good for senders?

canada-2026425_640You’ve probably already heard the news.Maybe it was in your Twitter feed, or on LinkedIn, or even gossip around the water cooler this morning: CASL’s Private Right of Action is (temporarily) dead.

The announcement triggered a collective sigh of relief from marketers in North America and beyond, even eliciting a happy dance or two.

But what does this announcement actually mean? Matt Vernhout of EmailKarma details the next steps, which include a parliamentary review of the CASL provisions and a pronouncement of the new effective date.

It’s possible the legislation could remain unchanged and simply take effect at a later date, but that seems unlikely given the concerns raised by the industry in response to the pending provisions. Per Return Path, some of the key concerns included:

  1. potentially bankrupting small and medium-sized businesses (due to the legal costs of defending a class action)
  2. inordinate court time and court resources being devoted to frivolous claims
  3. litigation counsel receiving a disproportionate share of damage awards (or settlements), and
  4. negative impact to consumers where businesses (both foreign and domestic) avoid electronic communication, delay the introduction of software technologies, and pass along the cost of PRAsettlements or rulings in the pricing of consumer goods

For the past 3 years, we’ve been hearing opponents of CASL voice many of these concerns, and it appears their cries have finally made it to the ears of the Canadian government. Unfortunately it’s still too early to tell if this is a full-on reprieve or merely a temporary stay of execution.

With the deadline looming so closely, it’s likely most senders have already double- or triple-checked their compliance processes. If you fall into that camp, stay the course. Even without the PRA, the CRTC can and has levied hefty fines against CASL violators, so making sure your processes are airtight can only help minimize your risk.

Based on my interactions with senders, there are many who haven’t completed their compliance efforts. If you’re one of those who was still scrambling to beat the deadline, don’t lose that head of steam. The delay of the PRA provides a bit of breathing room, but if you’re not 100% sure you’re compliant the risk of complaints and fines isn’t going away anytime soon.

– BG

 

Delivery Essentials

Transactional email and the unsubscribe link

3542845394_68b995ff48_bThere’s been a fairly long-standing debate in the email industry about transactional emails and the unsubscribe link. The main point of contention is whether or not a transactional email should include an unsubscribe link and if so, what types of messages should be stopped when it’s clicked. With the renewed discussion of the Canadian Anti-Spam Law (CASL)* ahead of its pending changes, this topic has made its way back into regular discussions with clients.

You may already know that CASL requires all transactional messaging to include an unsubscribe link, even though transactional messages don’t technically require consent. So in essence, the CASL-compliant unsubscribe link is designed to allow recipients to opt out of other commercial messages from the sender, but not transactional ones. But what if someone really doesn’t want to receive any more transactional messages? As senders, are we concerned with adhering to the letter of the law, or with improving our customer experience? The answer, of course, isn’t always cut and dry.

For starters, not everyone means the same thing when they reference a “transactional” email message. While a receipt for a purchase is considered transactional by most everyone, some other types of messages can present more of a gray area. Under CASL, a transactional message completes a transaction (duh!), delivers a product or service, presents warranty information, distributes legally required notices, or provides information pertaining to an ongoing contract, membership, or subscription. Sounds pretty similar to the US idea of transactional, with one major exception: under CASL, any promotional content in the email makes it a ‘commercial electronic message,’ or CEM, and therefore potentially subject to consent requirements. This differs from the “80/20 rule” that is considered best practice in the US (80% transactional content, 20% marketing).

Whether or not it makes sense to include an unsubscribe link in your transactional messaging depends on a number of factors. Let’s look at some of the most important ones for most senders.

Location, location, location

If you’re based in Canada, or your recipients are, you’ll have to include that unsubscribe link in your transactional messages to comply with the law. You’re only required to remove clickers from your commercial emails, but be sure to remove any promotional content from those transactional messages!

Transactional or transactional?**

One of the biggest factors to consider is just how essential the message may be. If someone purchases a software download and your email provides them the link to the software, or the license key, you’re not ever going to want to allow someone to unsubscribe from that. These are often referred to as triggered transactional messages, and they almost always facilitate or record a transaction involving the recipient.

For messages that are more relationship-based, such as a monthly update on benefits available to members, it may be a good idea to allow recipients the option to unsubscribe. Most recipients won’t unsubscribe, but those that do were only going to drag down your engagement metrics (and your deliverability as a result). If you start to see a swell of unsubscribes from these types of messages, it’s likely a good time to re-evaluate the value they are providing to your recipients.

Your audience

Do you have a receptive audience who opens and clicks on each email with almost religious fervor? Or do you have recipients who only open an email when they want to make a purchase? Analyze your audience engagement and segment based on those recipients who rarely if ever engage. It may be a good idea to provide these non-engaged recipients with the option to unsubscribe from non-critical relationship messaging.

In the end, it’s up to each organization to determine their ideal policy for allowing (or disallowing) unsubscribes in transactional messages. Aside from the mission-critical type triggered messages, the question really boils down to what’s most important: getting your message out, or giving your recipients the choice of what they want to receive?

– BG

*Of course, since we mentioned CASL, we also must mention that nothing in this post is legal advice. I’m not a lawyer, nor do I play one on TV. 

*Everyone who’s ever watched a cheesy mafia movie knows that when you say the same word twice, but with extra emphasis the second time, the distinction is being made between the literal and figurative uses of said word. Capisce?

Industry Updates, Laws and Regulations

CRTC levies first CASL fine against an individual

Last week the CRTC, the Canadian regulatory body tasked with CASL enforcement, issued notice of yet another notice of action for violations of the Anti-Spam Law. The Commission imposed a penalty of $15,000 against William Rapanos, alleging that messages sent by Mr. Rapanos in mid-2014 were in violation of multiple provisions of CASL.

This decision is noteworthy because it represents the first time a CASL penalty has been levied against an individual. All previous actions to this point have been issued against companies or corporate entities: names like Compu-Finder, Porter Airlines, PlentyofFish, and Kellogg Canada are among those hit with prior penalties.

The CRTC decision indicates that messages from Mr. Rapanos were sent without the recipient’s consent, did not clearly indicate the sender of the message, made it difficult or impossible to contact the sender, and (in at least one case) included no unsubscribe method.

Another interesting tidbit is that the Spam Reporting Centre received a total of 58 complaints about Rapanos’ messages. These complaints were mostly unique, with 50 different recipients lodging complaints to the SRC.

In discussions about CASL, I’ve heard quite a few people theorize that the CRTC is only looking for large-scale violations and penalties against smaller senders or individuals are unlikely. William Rapanos may have thought the same thing. Or he may have thought the effort and cost involved in CASL compliance weren’t worth it. Then 50 people complained, and now he’s on the hook for $15,000.

I think this decision – and the resulting penalty – proves to Mr. Rapanos and to all of us that compliance is definitely worth it.

Have questions about CASL compliance? Disagree that compliance is paramount for every sender? Leave a comment or email me to keep the discussion going!

Industry Updates

The CRTC wants to help you avoid CASL penalties

Canadian TV
https://en.wikipedia.org/wiki/User:Tkgd2007

Much has been said about the Canadian Anti-Spam Law, CASL, both before and since its effective date in July 2014. On the anti-CASL side, one of the loudest arguments is that the law places undue burden on lawful, legitimate marketers instead of the malicious spam peddlers of the world. However, it seems the Canadian Radio-television and Telecommunications Commission (CRTC) is trying to address those concerns and reach out to marketers who fear running afoul of CASL regulations.

In an address to the Canadian Marketing Association on Tuesday, CRTC chairman Jean-Pierre Blais reiterated the importance of allowing consumers full control over their digital communication channels. Comparing spam messages to personal violations of privacy, he noted that “[J]ust as we don’t like it when strangers intrude on our personal spaces or show up on our doorsteps, we don’t like it when unwanted messages and annoying calls enter the private spaces of our smartphones.”

Blais went on to address the feelings of many marketers that the CRTC is targeting too many legitimate businesses, asserting “[w]e don’t go out looking for dragons to slay. We much prefer helping marketers comply with the law than enforcing it after they’ve broken it.” Blais’ statement here seems to address the high volume of complaints received by the CRTC that have ostensibly driven most of the penalties assessed thus far. As for his personal preferences on marketing email, he stated “I actually want [brands] to tell me (as a consumer) when they’ve got specials, as long as there is that trusted relationship.”

Later, Blais reminded those in attendance of the new provision of the law coming into force in 2017 that allows private citizens the right to take legal action and seek damages against senders. Along with the reminder came a warning that the CRTC may be the least of some marketers’ worries: “Once there’s a private right of action, I won’t be able to help you … you’re on your own. Good luck with that. All the more reason to get into compliance as much as you can with us, because it will diminish the risk.”

– BG

Industry Updates

CASL Strikes Again as the CRTC Collects First Fine

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Earlier this month the CRTC, the body tasked with upholding Canada’s Anti-Spam Law (CASL), levied the first notice of violation and penalty against B2B mailer Compu-Finder, alleging violations including scraping addresses and failure to provide an unsubscribe method.

Yesterday, the CRTC continued its busy month with the announcement of a fine collected from Plentyoffish Media in the amount of $48,000. According to the press release, the fine was due to “an unsubscribe mechanism that was not clearly and prominently set out, and which could not be readily performed.” The CRTC asserts that Plentyoffish cooperated with the agency after being notified of the issue, leading most to presume that the amount of the fine was mitigated by that cooperation.

Possibly the most notable point in the announcement is that Plentyoffish was sending email to registered users, and it appears they did include an unsubscribe mechanism. However, the unsubscribe was not compliant with the requirements set forth by CASL. While the notice does not explicitly state how the unsubscribe method was non-compliant, it is likely the link was not prominently displayed in the message, or it may have required the user to take additional steps to process an unsubscribe.

The most important takeaway is stated quite eloquently by Manon Bombardier, the CRTC’s Chief Compliance and Enforcement Officer:

This case is an important reminder to businesses that they need to review their unsubscribe mechanisms to ensure they are clearly and prominently set out and can be readily performed.

If you haven’t already checked out your unsubscribe method, now is the time! If you’re unsure where to start, the CRTC provides some insight on the unsubscribe requirements here.

– Brad Gurley