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Ken Magill

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Okay, So I Was Wrong About CASL


By Ken Magill

One of the key lessons my father pounded into my head—literally pounded; he was very old school—was that the moment you know you are wrong in a debate you should shout it from the rooftops.

First, he said, by the time you realize you’re wrong everyone observing the debate has already probably figured it out so admitting it burnishes your reputation.

Second, he said, admitting you’re wrong disarms your opponent and ends the debate in your favor even though you lost.

In the spirit of my father’s words of wisdom, I am here to admit I was wrong about Canada’s anti-spam law.

I have written repeatedly that the problem with Canada’s anti-spam law is it mandates permission and, therefore, necessitates legally defining it.

“When the government decrees permission is necessary by law, government must define what exactly constitutes permission,” I wrote in 2011.

“The problem with lawmakers legislating permission is they then must define what permission is,” I wrote in 2012.

Boy, was I wrong.

I was wrong. I was wrong. I was wrong.

It turns out Canadian lawmakers defining permission wasn’t the problem. Okay, so maybe it was and still is a problem, but it’s not the most immediate one.

The biggest and most immediate problem with Canada’s anti-spam law is its crafters’ ineptitude at defining “commercial.”

As reported here, some sloppy wording in Canada’s anti-spam act has led the Canadian Radio-television and Telecommunications Commission to interpret it to mean that transactional emails are commercial messages and, therefore, subject to the various provisions of the law.

As a result, marketers who want to be safe will have to include unsubscribe mechanisms in transactional email messages. Technically this means allowing people to opt out of e-receipts and warranty notices, among other things.

This development is an act of sheer stupidity I never saw coming. After all, how do you screw up defining what is and is not a commercial message?

By attempting to codify it into law and trusting enforcement agencies to use common sense in interpretation and enforcement, that’s how.

From what I hear, some Canadian email service providers helped draft Canada’s anti-spam law.

Message to those Canadian ESPs: Don’t take my father’s advice. Admitting to your clients you had any part in this fiasco is liable to get you a well-earned wallop to the head.


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