Canada Delivers Whopper of an Email SNAFU
By Ken Magill
A poorly worded line in Canada’s anti-spam law—set to go into effect in July—may wreak havoc on marketers’ transactional email programs.
The sentence’s sloppy construction has reportedly resulted in all transactional emails being defined as commercial by the Canadian Radio-television and Telecommunications Commission.
As a result, all transactional emails are subject to all the provisions of Canada’s anti-spam law, or CASL as it’s widely referred to, and must include an unsubscribe link.
Under the American CAN-SPAM Act, transactional email messages aren’t required to include an unsubscribe mechanism. American transactional email messages can also lawfully include commercial content and still be considered transactional as long as the primary purpose of the message is obviously transactional.
Transactional email messages, such as account updates, shipping notices, invoices and receipts, are highly relevant and much more likely to be opened than broadcast emails. Transactional email messages are golden opportunities for added revenue through up- and cross-selling.
As a result, some U.S.-based commercial emailers cross- and/or up-sell in transactional messages. And many don’t include unsubscribe mechanisms in their transactional messages whether the messages contain promotional content or not.
Further, most transactional messages are automatically generated. As a result, most transactional email programs are managed by company IT departments rather than marketing.
Whether or not transactional emails should include an unsubscribe link has been debated for years.
Those who are for it argue the recipient is king and should always have control over what gets sent to their email addresses. Those who are against it point to—among other things—service disruptions that could ensue if a customer opts out of transactional messages.
Transactional messages may be required to service an account or to facilitate the initial transaction.
Under Canada’s anti-spam law, if a transactional message has any commercial content it is considered commercial and must include an unsubscribe link.
What is considered commercial content in email under the Canadian anti-spam act? Well, everything, apparently.
The line supposedly exempting transactional messages from certain provisions of the Canadian anti-spam act reads as follows: “Paragraph (1)(a) does not apply to a commercial electronic message that solely”.
The law then lists a bunch of run-of-the-mill transactional messages such as those that facilitate, complete or confirm a transaction.
So far so good, right?
Because the line leading into the exemptions contains the words “commercial electronic message” and “solely” the Canadian Radio-television and Telecommunications Commission—the agency that will enforce the law—has reportedly interpreted it to mean that everything it refers to is a commercial email and, therefore, subject to the CASL’s requirements.
“The CRTC has interpreted it to mean that all of those messages are commercial electronic messages irrespective of whether they fall under the definition of commercial electronic message,” said Shaun Brown, an attorney with nNovation LLP in Ottawa, CA, a firm that specializes in Internet-related issues. “Industry Canada and the CRTC appear to disagree on this issue [but] in the CRTC’s view, which is the enforcement agency, if you’re merely sending an e-receipt it’s a commercial electronic message for purposes of the law.”
What does this mean in terms compliance? Who knows for sure?
“It’s not clear whether you still need to allow recipients to unsubscribe from those messages,” said Brown.
The confusion is apparently a major case of “be careful what you wish for.”
“Industry Canada drafted the subsection very quickly [at the urging of business groups],” said Brown. “The purpose was to try and provide an exclusion for these types of messages even though an exclusion wasn’t necessary. What it ended up doing was creating confusion and now the CRTC is saying that because this subsection is there, all of these [transactional] types of communications are CEMs [commercial electronic messages.]”
And this is all because of the inclusion of the words “commercial electronic message” and “solely,” according to Brown.
“If they had just said ‘a message’ maybe we wouldn’t be in this situation,” he said. “Or if they had taken out the word ‘solely,’ we wouldn’t be in this situation. But when you combine ‘commercial electronic message’ with ‘solely,’ according to the CRTC, they say they have no choice but to interpret it that way.”
As a result, according to the CRTC’s interpretation of subsection 6 of Canada’s anti-spam law, all transactional email messages should include unsubscribe links.
“A lot of systems aren’t set up to process unsubscribes in transactional messages,” said Brown.
“The next question is what does your unsubscribe mechanism do? Does it only allow you to unsubscribe from messages that are actually commercial? Or does it allow you to unsubscribe from all communications?” Brown said. “It’s not clear or obvious to me, even based on the CRTC’s interpretation, that you still have to allow them to unsubscribe from these types of transactional messages.”
He added: “Some of these transactional messages are fundamental to the service that you’re providing. If you’re an e-commerce retailer and you only deliver receipts by email then you’re almost reduced to a point where you have to say ‘I can’t serve you anymore if you want to unsubscribe from e-receipts.’”
Brown predicted that marketers will respond by including unsubscribe links in transactional messages but possibly restricting recipients from unsubscribing from certain types of transactional emails.
Brown said he doesn’t see the CRTC making a point to enforce the inclusion of unsubscribe mechanisms in transactional email, nor does he envision the CRTC going after a brand for not allowing people to opt out of certain types of transactional messages.
“But I’m not the CRTC and I don’t speak for them,” he said. “The bigger issue is that some enterprising class-action lawyer may be able to leverage this into a lawsuit.”