Anti-spam without the heavy hand
At face value, Canada’s anti- spam l egislation ( CASL) can be heralded as a good thing, because who doesn’t want less spam? However, in its current version, CASL is anti- competitive to Canadian businesses, too costly to comply with, and strikes at the heart of our federal government’s goal of keeping “Canada at the leading edge of the digital economy.”
Foreign companies, in large volume, ignore CASL and continue to email Canadian consumers with no worry of r e percussion, whereas many Canadian companies — who are most f earful of CASL — have downgraded their email marketing efforts, creating an anti-competitive environment.
The legislation is costly because there are rules that govern how long a company can maintain c ustomer contact information based on when business relationships are deemed to have ended ( six- month and twoyear purge rules apply), and automating business solutions for this is immensely expensive. The money spent creating the needed software could be better spent on hiring, innovation, and expansion.
With apparent relief, the Canadian Radio- television and Telecommunications Commission ( CRTC) has shown discernment with CASL’s enforcement, having publicly denounced only six companies and one individual at the time of this writing. However, as of July 1, 2017, recipients of unwanted marketing can begin suing senders for alleged violations under the legislation’s Private Right of Action provisions. Because consumers cannot only sue for damages (which in most cases, are minuscule) but also for up to $ 200 per email totalling up to $ 1 million each day in which an offence occurred, CASL creates an incentive for litigation.
While all of this is occurring, companies overseas — the majority of the real groups our government should be trying to stop from spamming our inboxes — continue to target our Canadian companies and consumers with little constraint. What can we do about it? Aside from lodging a charter legal proceeding ( some lawyers have contended that CASL is unconstitutional), here are three simple recommendations for our federal government to make it easier for Canadian companies to comply while also protecting consumers.
First, change the definition of implied consent to “one party providing their contact information to another party.” For example, if a consumer downloads an educational e- report from an accountant’s website and provides their information in a form to do so, call it implied consent; or, if a consumer registers for a company’s online sweepstakes, call that implied consent too. What’s different about these two situations versus the random emails you get from strangers ( who are often overseas and are seeking your financial information or offering you pharmaceuticals with grandiose benefits) is that the recipient provided the sender their contact information in the first place. And even if the recipient doesn’t want to receive CEMs ( commercial electronic messages) after providing their information, the recipient can easily unsubscribe at any time. It’s much more laborious to be added to Canada’s Do Not Call list and, according to two separate phone conversations we had with Canada Post representatives, there’s no way to be permanently deleted from a company’s print direct mail list.
Second, remove the sixmonth and two- year purge dates for existing business relationships. In various industries and sectors it’s completely normal for consumers to take longer than six months to buy a product or more than two years to re- purchase a type of product ( think vehicles, kitchen renovations and houses). These purge dates not only take liberty away from the consumer (as a business may be legally forced to remove a consumer when the consumer would prefer to continue receiving the emails) but they also make it excessively expensive for companies to develop, implement and maintain the needed software.
Third, call it implied consent if two parties are voluntarily connected on a social network or instant messaging system. On the topic of social media, the CRTC has said that “accepting someone as a Friend” isn’t enough to form a personal relationship; under CASL’s current version, this isn’t enough to form implied consent either. Rules and opinions like these are prejudiced against a “leading edge” digital economy and aren’t mindful of how consumer behaviour has become more digital-centric. Two parties connecting on a social network is a very different situation from a stranger sending a CEM to a recipient — if the difference isn’t obvious, it’s because the recipient has consented to the mutual relationship on the social network or instant messaging system. If there is concern about unsubscribing, the proposed amendment could still require senders to provide an unsubscribe mechanism in their CEMs; for instance, at the bottom of a CEM, they could simply state “To unsubscribe, please reply with ‘unsubscribe’,” and if that doesn’t work, most networks provide an option to block or disconnect from users.
Implementing the above three recommendations is simple and beneficial. Recipients will continue to receive CEMs lawfully from only those that they know ( they provided their information to the sender in the first place); Canadian companies will become more competitive and more closely aligned with foreign legislation; and consumers will remain protected — they may unsubscribe at any time.
On July 1, the Private Right of Action commences and with it, the ability to lodge lawsuits. In principle, Private Right of Action has benefits as a policy mechanism, but only if the legislation it’s associated with is reasonable to comply with; if it isn’t, Private Right of Action can, inadvertently, be heavy-handed.