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No, It's Not Okay; Not Even Close

7/7/15
 
By Ken Magill
 
One of the most ridiculous arguments being made to defend Canada’s anti-spam act is that email marketing in the country hasn’t ground to a halt because of it.
 
Unfortunately, some folks I like and respect are making just that argument.
 
Well, of course email marketing hasn’t ground to a halt in Canada. Chilled does not equal stopped. We can’t know how many sales opportunities have been lost as a result of CASL, but it doesn’t take a genius to reasonably suspect sales opportunities have been lost—or at least made more difficult.
 
For example, Tim Palisano, president of freight company the Western New York Foreign Trade Zone, recently wrote in the Buffalo News:
 
“How the law [CASL] will be enforced for American companies is still in question, but for a company like our Lackawanna-based Western New York Foreign Trade Zone, which does a significant amount of Canadian business and markets heavily in southern Ontario and the Greater Toronto Area, the new regulations have had a definitive impact on how we reach prospective clients in Canada. Better safe than sorry.
 
“Not that anyone encourages unsolicited additions to email newsletter lists and “Click here to win” promos – who doesn’t hate having business or private email boxes filled with 150 messages a day that are completely irrelevant? But as any business development person knows, email ‘cold-calling’ to a specific contact within an organization to make an introduction can be a viable first step in the sales process. Now, that kind of outreach leaves the sender open to be reported on and penalized.
 
“How have we adjusted? Since it’s difficult to get at least implied consent from someone you’ve never met, networking has become the critical component of our Canadian business development strategy. WNYFTZ’s personnel in the southern Ontario and Toronto markets now spend the bulk of their time working the circuits and making face-to-face introductions.”
 
That’s one business-to-business marketer whose reps now must schlep from event to event rather than reach out with one-to-one prospecting emails. Is CASL a business killer in this case? No. Needlessly threatening? Yes. 
 
One can argue that CASL makes an exception for the type of “cold calling” Palisano describes, but he’s not taking that chance. We can’t know how many other businesses have taken similar steps out of fear of a law that serves no purpose and was never needed. But chances are the number is far greater than zero.
 
Another ridiculous argument is that the Canadian Radio-television and Telecommunications Commission hasn’t been overly punitive in enforcing the law.
 
To those folks, I have a question: How much abuse is okay with you? If I hit my wife just a little, is that alright?
 
Not that I would ever hit the wife, but one difference between my relationship with her and the CRTC’s relationship with companies doing business in Canada is the wife can make me miserable and/or leave me if I get abusive. Companies doing business in Canada have no such option with the CRTC. It is free to smack them around as much as it wants. To some folks, it’s apparently okay the CRTC has been smacking companies around mostly just a little.
 
CASL begs to be abused and, as a result, is.
 
Consider last week’s fine against Porter Airlines for allegedly violating the law’s unsubscribe provisions. According to the CRTC, “Once made aware of the investigation by the CRTC, Porter Airlines was cooperative and immediately took corrective actions to comply with the legislation.”
 
Porter was a first-time offender and apparently acted immediately to rectify the situation. No matter. The CRTC fined the airline $150,000 anyway.
 
That’s abuse. It doesn’t matter that it’s relatively only a little abuse. It’s abuse and it will get worse. And it’s not just abuse, it’s theft. The CRTC took $150,000 from Porter simply because it could.
 
“[T]he CRTC does not seem to be willing to cut first time offenders, any slack, even if they are willing to immediately do what is necessary to comply,” wrote attorney Bernice Karn on Mondaq.com. “While the first enforcement in October of 2014 [where the CRTC notified an ISP of an infected computer on its network and didn’t fine the ISP] seemed to indicate an inclination to work with business in a co-operative way to achieve compliance, subsequent reported enforcements indicate a more aggressive approach.”
 
Aggressive is one word for it. Morally bankrupt is another. 
 
We were warned:
 
“[A]n important way to evaluate legislation is to examine how it can be abused, not what the government says its goals are,” wrote attorney Derek James From of the Canadian Constitution foundation in the Huffington Post last August.
 
 
“And here's the full depth of the problem with CASL. When Parliament enacted this confusing and ambiguous legislation, it relinquished its legislative power to those regulators charged with enforcing the law. And since those same regulators have the power to directly levy enormous penalties, CASL permits bureaucrats to play the roles of legislator, police, and judge simultaneously.”
 
That is exactly what the CRTC is doing. And it’s wrong. Just because it hasn’t put anyone out of business yet—yet—doesn’t make the CRTC’s actions any less wrong. It simply makes morally bankrupt actions more palatable to those predisposed to defend the most dumbassed law in email marketing history.
 
Sooner or later, CASL defenders will be embarrassed into silence—those who can be, that is.
 
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