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Victory! CRTC Saves World from Clunky Unsubscribes!

3/31/15
 
By Ken Magill
 
The Canadian Radio-television and Telecommunications Commission announced last week it fined online dating company Planetyoffish Media $48,000 for allegedly violating Canada’s anti-spam law by failing to provide an unsubscribe mechanism that met with CRTC approval.
 
The news comes on the heels of the CRTC’s recently announced $1.1 million anti-spam enforcement action against Quebec-based management-training firm Compu-Finder.
 
“Plentyoffish Media had allegedly sent commercial emails to registered users of the Plenty of Fish online dating service with an unsubscribe mechanism that was not clearly and prominently set out, and which could not be readily performed, as required by the legislation,” the CRTC said in a statement.
 
“Once made aware of the investigation by the CRTC, Plentyoffish Media updated its unsubscribe mechanism to comply with the legislation.”
 
The CRTC did not detail what exactly was wrong with Plentyoffish’s unsubscribe mechanism. Was it the wrong font? Too small?
 
By failing to give details, the CRTC missed an opportunity to give other email marketers an illustration with which to compare their own unsubscribe mechanisms to make sure they comply.
 
What exactly is “prominently” and able to be “readily performed?”
 
Let’s look to the CRTC’s previously published statements for guidance:
 
“Section 3 of the Regulations requires that the information to be included in a CEM and the unsubscribe mechanism referred to in paragraph 6(2)(c) of the Act must be set out clearly and prominently,” the CRTC said in a compliance and enforcement bulletin pertaining to CASL.
 
No help there. There are those two words again: clearly and prominently, again undefined. And no, the definitions of those words are not obvious. They are judgment calls.
 
As for readily performed, “[T]he Commission considers that in order for an unsubscribe mechanism to be ‘readily performed,’ it must be accessed without difficulty or delay, and should be simple, quick, and easy for the consumer to use.”
 
No help there either. What does “without difficulty or delay” mean? Assuming the site is up, how much difficulty or delay can a click involve? And if a website is down because of say, a denial-of-service attack, does a resulting temporarily non-working unsubscribe link constitute a violation of Canadian law?
 
Apparently, it’s up to the CRTC to make that judgment call, too.
 
To be fair, the CRTC wasn’t completely unhelpful in spelling out its unsubscribe-mechanism requirements:
 
“The Commission considers that an example of an unsubscribe mechanism that can be readily performed is a link in an email that takes the user to a web page where he or she can unsubscribe from receiving all or some types of CEMs from the sender,” the bulletin said.
 
So where did Plentyoffish go wrong? Other emailers can’t know and thanks to the CRTC’s vagueness, they can’t assess and adjust—if need be—their programs accordingly.
 
But providing actionable information aimed at helping companies assess and adjust their email programs independently is not the CRTC’s goal. Otherwise, its usefulness would be diminished.
 
Let’s give the CRTC the benefit of the doubt for a moment and say Plentyoffish’s unsubscribe mechanism wasn’t clearly displayed or easy to use. It takes a federal agency to remedy this? Have the CRTC bureaucrats never heard of the “report spam” button?
 
Federal actions announced publicly are by definition political statements.
 
With its first two anti-spam-law fines, the CRTC’s message is: “We’re straining to remain relevant by inserting ourselves into Internet activity and will waste federal resources pursuing trivial nuisances to do so.”
 
Ironically, the CRTC’s actions so far under CASL have been utterly irrelevant.
 
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