For a full-day of insight and discussion on the important legal issues facing Canadian marketing and media professionals, don’t miss the Marketing and the Law conference on Dec. 6 in Toronto.
How will Canada’s new anti-spam legislation affect you?
A cold, clammy uncertainty has been spreading in parts of the marketing and communications industry since the federal government passed an anti-spam bill called Canada’s Anti-Spam Legislation (CASL) into law in December 2010. The implementation of the final regulations has taken longer than anticipated; they were originally expected to be published in their final form this fall with a projected enforcement date of Jan. 1, 2012.
According to Industry Canada spokesperson Michel Cimpaye, CASL is intended to create a more secure online environment in Canada by deterring the most damaging and deceptive forms of spam. In part, it covers the unsolicited installation of spyware and malware on people’s computers.
But, of particular interest to e-mail marketers, the bill also extends the provisions of the Competition Act related to false and misleading marketing to electronic messages.
In addition, CASL extends the application of the Personal Information Protection and Electronic Documents Act (PIPEDA) to include some privacy violations associated with spam.
Significant pushback from industry groups over some of the proposed regulations for CASL arose during a 60-day consultation period last summer and has prolonged the process of putting the law into effect. Industry Canada and the Canadian Radio-television and Telecommunications Commission (CRTC) each received 55 formal submissions from interested parties during the consultation process, says Cimpaye, including ones from the Association of Canadian Advertisers (ACA), the Canadian Marketing Association (CMA) and the Interactive Advertising Bureau of Canada. (The new regulations will be one of several important topics on the agenda at the first Marketing and the Law conference Dec. 6, in Toronto.)
The consultation period closed Sept. 7, and, as of press time in early November, Industry Canada was analyzing all the submissions and “developing options for consideration,” with next steps to be determined in the near future, according to Cimpaye. CASL will not come into effect until the regulations have been finalized and a Spam Reporting Centre has been launched, he adds.
The ball is now in Industry Canada’s court, says Bob Reaume, vice-president, policy and research at ACA. “We’re all just waiting for their next move…All we’ve heard is ‘We’re taking this back to the drawing board.’”
Why do e-mail marketers need to keep a close eye on how this law progresses? Because when it comes into force, some may have to make significant changes to their online marketing practices and, more specifically, how they send commercial electronic messages (CEMs) to become compliant.
Even marketers that follow existing best practices for sending CEMs will need to seriously scrutinize their marketing practices to prepare for CASL. “There’s certainly been a lot of interest in CASL [in the Canadian marketing industry] and a certain amount of anxiety about it,” says Wally Hill, vice-president, public affairs and communications at the CMA. “A lot of people were running around saying ‘What do we need to do?’”
“The premise of this act is that consent to receive e-mails or receive computer programs onto your system must be given,” says David Young, a partner at Toronto’s McMillan LLP. (Young will be taking part in the first Marketing and the Law conference, Dec. 6 in Toronto.) The act, as it has been passed, requires opt-in express consent to receive e-mails, says Young. There are a few exceptions in certain specific categories where consent is implied. These include, for example, a business relationship that exists today or was terminated no longer than two years ago.
Young believes the most potentially burdensome part of the draft regulations for businesses is that there is no grandfathering of PIPEDA consents. He says a large number of the consents marketers have obtained under the existing PIPEDA privacy laws that don’t satisfy CASL’s express opt-in rule will not be grandfathered under CASL.
For example, under the current proposed regulations, if a business dealt with someone three years ago and that person is still on the company’s mailing list, but hasn’t been back for new business since then, the marketer cannot send them CEMs unless they’ve obtained a form of opt-in express consent in advance.
“To me, it is so self-evident that [grandfathering PIPEDA consents] should be done,” says Young. “To force Canadian businesses that have spent 10 years building valid consents under the privacy law to turn around and actively go out and get this opt-in consent and re-communicate with everybody they’ve been dealing with is a significant hurdle and a cost element for businesses,” he says.
There’s more. To read the full article “New Rules of Consent,” a history of North American anti-spam legislation and opinions from around the industry, pick up the Nov. 28 issue of Marketing.
And be sure to sign up for Marketing’s Marketing and the Law conference, Dec. 6 in Toronto.
