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Possibly Why CASL was Written So Badly

10/13/15
 
By Ken Magill
 
I can’t be the only one who has been asking how in the hell Canada could have passed such a draconian, terribly written anti-spam law. And I think I may have finally arrived at an answer.
 
So far I have been able to identify three people who were involved in crafting Canada’s anti-spam act. And if the rest of the folks involved are anything like the three I know of, it explains a lot.
 
All three are extremely intelligent. They have forgotten more about how email and the Internet works than I’ll ever know. I am not naming them because I don’t want to get needlessly personal. I am also not aiming to insult them. So again, these are not stupid people by any stretch. They seem decent enough, as well.
 
So how could they help write such a stupid law? And make no mistake, it is a jaw-droppingly stupidly written law. Seemingly on a weekly basis, a new discovery about CASL invites another face-palm from the North American business community.
 
The reason CASL is so bad is at least some of the people who exerted control over its development are technological whizzes who have no marketing expertise. If the primary influencers over CASL’s development had even a shred of marketing expertise, it wouldn’t have been written the way it is.
 
The people who wrote CASL understand the mechanism they were aiming to regulate as well or better than anyone else in the world, but they failed to realize they have no expertise on the activity they were aiming to regulate.
 
They don’t know what they don’t know.
 
CASL could only have been written by people who hate the U.S. CAN-SPAM Act because it does not make opt-in compulsory. They hate the fact that the U.S. Direct Marketing Association had as much sway as it did in crafting CAN-SPAM.
 
What they fail to understand is CAN-SPAM saved email marketing. It superseded a Byzantine maze of state laws that had email marketing on life support.
 
They also fail to recognize that email is now primarily used to manage business and commercial relationships and consumers want it that way.
 
According to a 2012 study by ExactTarget, 77 percent of consumers said they wanted permission-based commercial email. There wasn’t even a close second.
 
Here is what one of CASL’s crafters wrote in the comments section of an article on the law’s negative effects on marketing.
 
“As a long time participant in the anti-spam wars, and having been involved in the crafting of this law, there's nothing unexpected here. Yes, it will kill a few marketing strategies - the bad, unethical and/or illegal ones. Yes, it will cause you to remove dubious entries from your mailing lists. Good. Yes, you'll send less email because you're constrained to only send email to people who actually asked for it. Yes, it will impact your competitiveness with US marketers who don't comply with this law, but I can tell you, the ethical ones already were in compliance with the substance of this law, those that aren't in compliance can still have significant legal problems from CASL, and the ones you're worried about competing with are the sleazy end of the industry. Not being able to compete with the sleaze is not a very good argument.
 
“Most of the fuss about CASL is caused by the fear, uncertainty and doubt spread by lawyers and other paid consultants who see this as an opportunity to make money: ‘scare the marketers with this eeeevil law - they'll pay me consulting fees!’.”
 
Actually, most of the fuss about CASL has been created by an unchecked Canadian Radio-television and Telecommunications Commission fining companies over niggling offenses and offering no details the business community can work from to ensure their programs comply with the CRTC’s opaque demands.
 
Much of the fuss is also because CASL is forcing marketers to re-permission their lists. To use one of the anti-spam community’s favorite words, this guy has no clue about marketing.
 
“Yes, it will cause you to remove dubious entries from your mailing lists?” It is truly disturbing that someone who can so breezily refer to decimating in-house email marketing lists could have had any input into CASL. 
 
In the case of pre-CASL house-file email lists—many? most? all? of which must be repermissioned—the law doesn’t constrain marketers to only send email to people who have asked for it, in a significant percentage of cases it constrains marketers to sending email only to people who ask for it again.
 
The moment someone advocates contacting only people who want to hear sales and marketing messages is the moment they have outed themselves as utterly ignorant of the role inertia and apathy play in the sales process.
 
Marketing is all about overcoming inertia and apathy. CASL makes that inertia and apathy much harder to overcome for no good purpose.
 
But that’s what you get when you have a law written by people who view the craft they’re regulating with contempt.
 
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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: Steve Henderson
Date: 2015-10-14 04:45:16
Subject: CASL may be bad, but that doesn't mean that permission is too!

Minor counterpoint for the sake of balance: Opt-in for marketing was supposedly going to kill off email marketing in the EU. Oh, but look what's happened! You have just posted the latest Return Path inbox stats. Any idea what the corresponding inbox rates are for the same stuff in the EU, but with opt-in instead of opt-out? Better permission, better data, better delivery, better inbox rates, fewer delivery issues = better results. You are right about marketing having to overcome apathy. But have you noticed that apathy towards privacy and data protection is changing all on its own? Just go and look at the recent apology from the Spotify CEO.

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