On July 1, 2014, Canada’s Anti-Spam Legislation (CASL) went into effect, criminalizing any non-solicited commercial email sent to a Canadian email address. The law has been a work-in-progress, as it was approved by Parliament back in 2010 but is only now being enforced. CASL aims to protect Canadian citizens from spam messages sent via email and text. Companies and individuals are no longer allowed to advertise, install software or collect data from consumers without consent.
Given that spam costs Canada an estimated $3 billion per year, the fines for breaking the new law are hefty. But that’s not what irks Canadians and the people who market to them the most; many feel the law has vague guidelines and unrealistic expectations. While most people can relate to the frustration of receiving relentless spam-like messages, this law could end up being more of a burden than a relief.
The Complication of Consent
For starters, CASL requires that a sender have consent to issue commercial emails soliciting a business transaction. Under these circumstances, consent can be implied or express. Companies have implied consent from someone they have done business with in the last two years and express consent from a documented agreement or otherwise explicitly-stated materials. If a business already has express consent, it can continue to communicate with clients through commercial email or text and not be in violation of CASL. Furthermore, express consent – whether from past or future transactions – will not expire unless the client withdraws it.
The restrictions of consent have caused a lot of frustration. While some businesses have done a good job of storing customer sales history, others are frantically emailing current or previous clients, asking for approval to continue their marketing efforts. If companies haven’t been diligent about tracking sales and maintaining their client list, this is their only option for retaining existing customers. Generally speaking, businesses expect to get express consent from only 20% of the people from whom they request it, meaning they will automatically lose a large fraction of their potential customer base.
Paying the Dues
In addition to the process of eliciting consent being both annoying and stressful, the fines due for violating CASL have left people outraged. The fee for an individual’s violation is 1 million Canadian dollars (the equivalent of roughly $940 USD) while companies will potentially owe $10 million CAD per offense. Small companies and non-profit organizations are expected to take the biggest hit under this law because they not only lack the resources and marketing budget other larger companies have, but they will also be less likely to pay the damages associated with breaking the law.
Many people turn to email blasts as a form of convenient and cost-effective marketing. Thus, spam is typically orchestrated through mass email campaigns, but people who use it on a smaller scale are also at risk of violation. Parents can no longer email family members and friends to buy candy or magazines for a child’s school fundraiser. Entrepreneurs trying to jump start their business by reaching out to their personal contact list will be breaking the law. Under CASL, the innocent could be drastically penalized simply for not knowing their rights.
No More Spam?
Only time can determine the efficacy of CASL. The Canadian Radio-television and Communicatons Commission (CRTC), which will be regulating violations, received over 12,000 complaints within the first ten days of the law being in place. Consumers and businesses alike speculate that the CRTC has limited resources in filtering and researching any breaking of the rules and will not be able to handle the influx of reported violations. They also feel that the law will punish the innocent while the true spammers will continue to fly under the radar.
Whether or not CASL will remain in place and the likelihood of other countries drafting similar legislation will depend on its effectiveness in putting an end to spam. Its execution will happen in waves. Canadian businesses have the next three years to renew consent with existing clients, malware installations won’t be illegal until January 15, 2015, and lawsuits for violating CASL cannot be filed until July 1, 2017. Still, consumers are urged to report occurrences to the Spam Reporting Centre (SRC), at www.fightspam.gc.ca and the Canadian government remains hopeful that it will benefit all parties involved.