Archive for the ‘Email and the Law’ Category
Posted by Rob Ropars on May 17th, 2013
In previous blog posts, I’ve discussed the status and ongoing updates to the Canadian Anti-Spam Legislation (aka “CASL”). Industry groups across North America and Email Service Providers (ESPs) have expressed serious concerns about the law’s wording, reach and requirements. To that end, the primary government agency for administering and enforcing CASL, the Canadian Radio-television and Telecommunications Commission (CRTC), met with various groups recently to discuss CASL.
In a meeting follow-up, the CRTC issued a report summarizing the topics and initial thoughts. It’s clear to many of us who have been following this topic that the impact on businesses, marketers and ESPs will be profound if the CRTC proceeds on its current course.
Unlike the CAN SPAM Act in the US and other anti-spam measures around the world, CASL is by far the most restrictive and punitive. They place strict rules around what constitutes consent, retroactive requirement of consent, definitions of Commercial Electronic Messages (CEMs), and the scope of covered marketing efforts/technology beyond email marketing. The punishment for noncompliance is extreme.
The topic of consent and the retroactive requirement, for example, is of paramount importance to marketers. Many will have trouble proving 100% confirmed opt-ins, thereby risking serious list attrition in attempting to now acquire consent. Going forward from the start of the law’s enforcement, few would dispute the need to comply with new opt-ins. However, trying to reconfirm existing marketing lists could be impossible.
So what’s next? At this point, the CRTC held initial meetings in February 2013 and have since issued a report in early April. They are currently reviewing the report’s feedback and comments and they will be publishing further compliance and communication materials prior to CASL coming into force. In the meantime, those of us in the industry will continue to push for clarity and reasonable, judicious application of the law.
In the end, any law that makes it more difficult for businesses to communicate with customers is something that should be avoided. Legitimate marketers are in agreement that opt-in practices should be in place, but not ones with onerous restrictions that cripple one of the most efficient and cost-effective communication vehicles available. The business of business can’t suffer in the wake of overly broad laws and regulations.
From everything I’ve read and heard, the actual enforcement may not begin until 2014. In addition, there is a ramp-up period so there will be time to finalize your compliance efforts. But take heed if you’re in Canada, marketing to consumers in Canada or acting as the marketing engine for Canadian clients. If things continue with the CRTC as they have been thus far, we may all be challenged with obtaining opt-ins from people you’ve been mailing for years. List attrition is a very real possibility, one which will impact overall marketing and communication efforts for years to come. Hopefully the CRTC will take our concerns into consideration and provide a more reasonable process for compliance.
Report on the Informal Consultation of 25 February 2013 among Industry and Consumer Groups and CRTC Staff on Canada’s Anti-Spam Legislation
Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC)
Canada’s Anti-Spam Legislation
Canadian Radio-television and Telecommunications Commission
Posted by Rob Ropars on October 16th, 2012
(Follow-up to Good Luck Storming the C.A.S.L., published 10/8/12)
The CRTC has published a new Compliance and Enforcement Information Bulletin on CASL (CRTC 2012-548), and this appears to show some of the ways they’re intending to enforce the Canadian anti-spam law. A key provision for email marketers is language that indicates that service providers do NOT have to be identified in commercial electronic messages if they did not have a role in content creation or list selection. Those of us who provide “managed services” including copywriting, strategic consulting and/or physically deploying clients’ messages should examine this carefully with legal counsel review.
The infamous “pre-checked” opt-in boxes (aka “negative opt-ins”) so ubiquitous on web sites are forbidden as “express consent” is required. Tied to this, it seems that a confirmation email will be required, but that should be a best practice already for most marketers. Another issue is “oral consent” as the CRTC is requiring either an audio recording or “independent third party” confirmation that someone verbally gave consent (it’s unclear how that would be handled by businesses). If you think of call centers or point-of-sale verbal opt-ins you begin to see the complexity in recording or getting independent verification (though having the customer physically opt-in would work around this).
We’ll continue to monitor the situation and the ESPC (which we’re a member of) is actively working to interact with the CRTC to ensure marketers aren’t facing unreasonable challenges and burdens marketing to Canadians.
You can read the CRTC update by clicking here
Posted by Rob Ropars on October 8th, 2012
As you may recall, Canada passed its anti-spam law in December of 2010. As we approach the second anniversary of this action, the Governor in Council order required to put the law into effect has yet to occur.
Current speculation is that the law will begin enforcement in 2013. The lengthy delay has lead to C.A.S.L. falling off the radar of many marketers. I’ve been following this topic since it first arose and reviewed the key points of the law which will impact email marketing both inside and outside of Canada.
As a quick reminder, C.A.S.L. covers far more than email, has a higher standard of compliance for email marketing and penalties far beyond the US CAN-SPAM Act. The law covers all commercial electronic messages and requires 100% consent to send email, SMS/MMS, and social media communications. Three government agencies will be enforcing various aspects of the law including the Canadian Radio-television and Telecommunications Commission (CRTC), the Competition Bureau and the Office of the Privacy Commissioner.
And beyond that, the law empowers individuals and organizations to bring a private right of action in court against those perceived to violate the law. The penalties across the board for violations are hefty. I strongly urge marketers to review the Canadian government’s portal on C.A.S.L., get the facts, confer with legal counsel and be prepared.
Posted by Rob Ropars on May 27th, 2010
As you know, I’ve been reporting to you on the Canadian government’s efforts to establish an anti-spam bill similar to the US CAN SPAM Act. Last year the bill, known as C-27 or the Electronic Commerce Protection Act was stalled during December. It has been pending resubmission in 2010.
Yesterday, Industry Minister Tony Clement tabled the bill as C-28 aka the Fighting Internet and Wireless Spam Act. After many months of debate and mutual compromise, the original bill’s wording and intent to restrain email marketing has become a little more laid back.
Under the current proposed legislation, the Canadian government would establish a spam-reporting center to work with government enforcement agencies with the power to shut down “sites.”
However, the following entities are EXEMPT from this law, in its current form: charities, political parties, pollsters and businesses with an established relationship with a recipient. Many critics are already complaining that this leaves the gates open to continued spam, as they did when the US CAN SPAM Act was passed and it was noted the law’s name itself says you “CAN SPAM” since you can email anyone once if you let them opt-out.
Obviously, until a law is finally passed, discussion on its impact can only be hypothetical. As it stands, if you are a permission-based email marketer, it doesn’t appear this bill would impact your email marketing efforts. We will of course continue to monitor this law and its potential impact and update you when new developments occur.
Posted by Rob Ropars on April 28th, 2010
In October 2009, an anti-spam bill was passed and became law in The Netherlands. The Dutch Independent Mail and Telecommunication Authority (also known as OPTA) is in charge of investigating spam complaints to determine their relevancy under the law.
The law itself outlines that no “advertisement” can be sent without the explicit prior request of a recipient. All Dutch citizens now have a website to report any potential violations directly to OPTA (www.spamklacht.nl) (note – “spamklacht” is Dutch for “spam complaint”).
How “spam” is defined is outlined on this site. Here is a rough English translation courtesy of Google (pardon some of its unintentionally humorous translations):
A spam message is an unsolicited message that you receive. Think of an e-mail or text message. The contents of the message determines whether there really is spam: it must commercial, charitable or are idealistic. The Telecommunications Act states that sending spam is prohibited in the Netherlands.
Which messages may be spam?
Spam messages are always sent via an electronic channel. You receive them as follows:
* Via a mobile phone (SMS or MMS)
* By fax
* By phone when you receive a call from an automatic call system (a computer)
* Through ‘social networking’ sites (eg MySpace, Facebook and MySpace)
* Through other electronic channels, the technology of the Internet is in full swing
Characteristic of a spam message is that you do not consent to the message received.
As you can see, all forms for unsolicited contact are included in this law. OPTA (as an independent agency) has reviewed 10,000 complaints submitted over the past 5 months (apparently 3x the number of complaints received a year earlier). So far they have issued 39 official warnings to businesses. OPTA has the authority to fine violators up to 450,000 EUR (about $611,000 USD) per case, and they have fined a few persistent spammers so far (one as much as 250,000 EUR).
From reviewing some of the articles and commentary, it appears that most people feel that this law is part of a growing worldwide effort to fight back against spammers. It is being reported that since the law was passed, spam generated from the Netherlands has decreased by more than 85%.
If your email marketing efforts include mailing lists with the addresses of Dutch recipients, you will want to ensure to review your requirements and liability regarding emailing them.
To learn more, click here