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Ken Magill

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Is it Possible? Yet Even More CASL Stupidity

9/2/14
 
By Ken Magill
 
A while back I interviewed a top executive of a Canadian email service provider who told me he was instrumental in getting the most egregious portions of his country’s monstrously crafted anti-spam bill removed.
 
Today, I am left wondering what those egregious portions of CASL might have been: A provision forcing email marketers to juggle kittens with steak knives? One requiring self spleen removals with clam shuckers? Or maybe it was a provision requiring tattooing likenesses of Celine Dion and Justin Bieber on email marketers’ inner thighs. [That guy in the middle sure does look like Willie Nelson.]
 
It boggles the mind to think how CASL could have been crafted any more badly than it is. Marketers in foreign countries aren’t even safe from this law.
 
During the last several months, the nightmare scenarios surrounding CASL spelled out by various experts have been legion. And they keep coming.
 
The latest example of CASL stupidity comes from marketing executive Andrew Schiestel writing for the London Free Press.
 
According to Schiestel, small- to medium-sized businesses are “dumfounded” on how to comply with CASL’s express and implied consent provisions in a systemic way that doesn’t break the bank.
 
“Let me explain,” he writes. [This excerpt is long but worth it.]
 
Well-marketed SMBs have developed processes around how they handle leads (both prospects and customers).
 
For instance, let’s say you run a roofing installation company.
 
Every day people fill out forms on your website. If you were doing digital marketing well, you would auto-migrate these leads with an email marketing software like MailChimp, Campaign Monitor, etc., and you’d periodically send out email campaigns (special offers, educational material, etc.).
 
Post-CASL, here are some problems with this process. Assume in the following scenarios the recipient never provided express consent (i.e., they didn’t click a check-box near the web form saying the business could send them CEMs).
 
1. A potential vendor fills out your ‘Contact Us’ web form. You auto-load this person onto your email list as per your process, and they receive your fall email blast (a CEM). You have violated CASL because you didn’t have express or implied consent to send them CEMs.
 
2. A potential new hire fills out your web form. You auto-load this person onto your email list as per your process, and they receive your spring CEM blast. This is a CASL violation. You didn’t have express or implied consent to send them CEMs.
 
3. A past customer from 4 years ago fills out this same web form. They only have a simple question: “Do you have any tips to best maintain my eavestrough?” You didn’t do email marketing back then, so you won’t be able to have your CEMs fit under the 3-year transitional provision (for s. 66 to apply, you must have record of a CEM between you and the recipient that pre-dates July 1, 2014). As per your process, you auto-load this consumer onto your email marketing list and they receive your summer email campaign. Again, this is a CASL violation, because you didn’t have express or implied consent.
 
Any of these simple and accidental violations, as per the legislation, could expose your business to fines as high as ten million dollars.
 
One could say regulators will use reasonable discretion with legitimate businesses trying to do things right and tripping occasionally along the way, but in 2017, there’s a provision in one of the regulations that allows consumers to bring forth class action legal proceedings against businesses who breach CASL.
 
Certainly, the segment of easily-irritated and litigious consumers aren’t going to have as much patience as a regulatory body who hold greater perspective (and different motives).
 
A natural solution for this roofing company is to change its processes. They could simply have a staff member sift through ‘Contact Us’ form contacts weekly, eliminating anyone that doesn’t fit under express consent, implied consent or a different exemption. This works to a certain extent, but doesn’t solve the entire problem.
 
Firstly, what if this staff member makes a mistake? The concept of human error exists in every industry. Even a 3% error rate could expose this business to debilitating sanctions or litigation.
 
Secondly, let’s say you divert human error and go through the process of properly adding the correct people to your list. You are only given six months to send CEMs to past leads and two years to send CEMs to past customers. So, now you need the processes and technologies to remove people from your lists on time or you risk violating the rules.
 
Thirdly, you will inevitably run into the scenario where you added someone onto your email marketing list as a lead (six-month rule) but then they become a customer. What’s your process for switching them over to reflect this extended time (two years versus six months to send them CEMs)?
 
To go down the rabbit hole even further, each time someone re-purchases your product, the two-year period gets extended. What’s your process for extending this with your CEMs?
 
Overwhelmed or confused yet? This is the point I’m making.
 
These are the types of issues SMBs who want to optimize their marketing efforts, while complying with the CASL rules, are dealing with or may not even know exist as a problem.
 
If ever there was a law that screamed for repeal, CASL is it. The only truly safe way for small- to medium-sized businesses in Canada to deal with CASL would be to scrap their current lists and rebuild their email programs from scratch.
 
And for what? What does CASL accomplish beyond threatening and crippling businesses that weren’t the problem in the first place?
 
Exit question: How many Canadians does it take to write a working anti-spam law?
 
Answer: Who knows? They haven’t written one yet.
 
Or:
 
Knock knock
 
Who’s there?
 
Boris
 
Boris who?
 
Boris the Russian penis-pill spammer who doesn’t give a flying crap about Canada’s anti-spam law.
 
Or: 
 
Knock knock
 
Who’s there?
 
收件人的邮箱容量严重超负荷了
 
收件人的邮箱容量严重超负荷了 who?
 
收件人的邮箱容量严重超负荷了,接收功能处于罢工状态 
 
Or:
 
Knock knock
 
Who’s there?
 
Same guy
 
Same guy who?
 
Same guy who spammed you before Canada passed its dumbassed anti-spam law.
 
Or:
 
Knock knock
 
Who’s there?
 
Malware
 
Malware who?
 
Malware that was already against the law before Canada passed its dumbass anti-spam law.
 
Or:
 
Knock knock
 
Who’s there?
 
Canadian email marketer
 
Canadian email marketer who?
 
 
Canadian email marketer who?
 
 
Canadian email marketer who?
 
We’re sorry. We knocked on June 30 before CASL kicked in. We’ve since had to destroy our email list because four years ago we couldn’t foresee some stupid-ass law that would require us to keep records of all our opt-ins and purge, update and reclassify them on a rolling six-month and two-year basis. 
 
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Terms: Feel free to be as big a jerk as you want, but don't attack anyone other than me personally. And don't criticize people or companies other than me anonymously. Got something crappy to say? Say it under your real name. Anonymous potshots and personal attacks aimed at me, however, are fine.

Posted by: Ken Magill
Date: 2014-09-02 18:28:11
Subject: 2 Year Enforcement Challenge

Fair point. I have no idea. CASL just keeps getting better and better!
Posted by: James O'Brien
Date: 2014-09-02 17:42:18
Subject: 2 Year Enforcement Challenge

I'm wondering how you enforce a regulation that takes two years to violate? I can see the FTC monitoring the 10 day rule for removing unsubscribes. But I think Canadian regulators will have problems with 6 months- forget about 2 years. But we will have no way to find out until after late 2016 and realistically at least early 2017.

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