Canada's new anti-spam law (CASL) is one of the toughest in the world. Although there is a significant grace period, as of 1 July, email marketers must demonstrate their customers have actively opted in to receive commercial electronic messages or face a fine of up to $10m. But what does this mean for companies based outside the country trying to sell their products and services to consumers within it?
First things first: the law clearly applies to international players doing business in Canada. “There may be practical difficulties with enforcement if the organisation has no physical presence in Canada,” says Adam Kardash, partner at law firm Osler and co-lead of its privacy and data management practice. But he warns businesses that are thinking about taking the risk of the adverse publicity they are likely to receive in doing so.
And if you had any doubts about how seriously Canadian consumers are taking this legislation, just one week on from the legislation coming into effect, the Canadian Radio-television and Telecommunications Commission had already received more than 1,000 complaints.
What's more, Wally Hill, SVP, government & consumer affairs at the Canadian Marketing Association (CMA), suspects that there will be “a degree of collaboration between regulatory enforcement bodies”, as has happened with telemarking in the past.
“There has to be,” he says. “Tackling real spam activity is an international issue, and it requires international collaboration to make a dent against the bad boys in the longer term.”
B2B players are largely exempt from the new regime and any business that has already taken a strong permissions-based approach to their marketing will only need to make modest changes, says Hill. Tick boxes can't be pre-checked, for example, and there is a defined form to use to collect the relevant details.
Kardash says: “The best first step is to create an inventory of the different types of messages you send, identify which are commercial and gain comfort about the level of risk you face.” Then it's about developing a strategy for compliance that is good enough to satisfy a “due diligence” defence if any rogue communication ever slipped through.
It's worth noting that implied consent is allowed in certain instances, such as where there is an existing business relationship (defined as a transaction within the past two years, or a consumer inquiry within the past six months). But these time limits mean companies need to have a more effective list management regime in place to flag when these permissions expire – as well as to deal with people opting out in the meantime. Kardash believes some companies simply won't have the necessary technological infrastructure to meet the requirements set.
For Hill, the area hardest hit by the new legislation is list rentals. “Prospecting rules are quite stringent: you have to have express consent to share contacts with unknown third parties – and your unsubscribe management process has to be quite rigorous as well to cover both your own list and the list you got it from.”
This has particular ramifications for smaller companies or new entrants to the market, which are keen to get hold of lists of consumers that have no idea that they exist. “The option will be there, but the lists are going to be smaller,” explains Hill.
But the lists are also going to be cleaner and potentially higher value. And, at the end of the day, this law also says something valuable to marketers about the consumers they are trying to reach. “All the indications from consumers suggest that they are pretty comfortable dealing with and hearing from organisations that they've chosen and identified, but they want to have more control and choice when dealing with organisations they don't know,” says Hill.
And Kardash's closing advice to those already selling goods or thinking expanding into Canada? “Take this seriously,” he says.