No Scare Tactics - The Truth About Canada's Anti-Spam Law
There has been a lot of talk in the media of late about the new Canadian anti-spam legislation. Numerous stories have been reported in the media, with the result being that business owners are panicked and scrambling, fearing a multi-million dollar lawsuit that would sink nearly any business. At Csek Creative, we have spent countless hours reviewing the legislation and the opinions of expert lawyers from across the country. Now we want to share our thoughts and opinions on the Canadian Anti-Spam Legislation (CASL) with our clients and the general public, putting to bed some rumours and sharing our advice on how to move forward.
This new legislation received Royal Assent on December 15, 2010 and it represents one of the strictest sets of anti-spam laws in the world. On December 4, 2013, the Federal Government announced that the CASL would come into effect on July 1, 2014.1
According to many bloggers, media agencies, and “experts”, this law is coming into full-force, with little warning and devastating financial consequences - up to $10 million dollars - for businesses or individuals who are in violation of the legislation. These business owners are understandably concerned as most are operating small to medium sized businesses and a $10-million fine would more than bankrupt the business and possibly any stakeholders who are found liable.
The team at Csek Creative have been growing concerned with the messages that our clients have been receiving, including fear-mongering that is quickly followed by a sales pitch. A sort of “Buy my services and I will save you from a $10-million dollar downfall” pitch. It’s a bit like Y2K all over again. But the year 2000 came and went and our investments were fine, though we felt a bit sheepish at our panic, and life went on.
Before you begin to panic about the CASL, we must look at what the legislation is trying to accomplish and apply a bit of common sense.
3. The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct
(a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities;
(b) imposes additional costs on businesses and consumers;
(c) compromises privacy and the security of confidential information; and
(d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad.
The new law is not being put into place to stop you from doing business or sending an email. It is being put into place to help you and make email and other communication better. Personally, my spam filters catch so much spam everyday and it makes it hard for legitimate email to make it through!
The video embedded below is presented by a staff member of the CRTC and even they put a disclaimer on the act that they will be administrating.
This presentation has been prepared by Commission staff to provide general information with respect to Canada’s Anti-spam Legislation (CASL). This material is not to be considered legal advice nor is it binding on the Commission itself. Further, it does not reflect an interpretation of CASL and/or its accompanying regulations by the Office of the Privacy Commissioner, the Competition Bureau or Industry Canada. 3
Deloitte and Touche have prepared a great brief on Canada's Anti-Spam Legislation. Reading through it, you will notice that the new law should actually make the operation of your business easier, assuming that you have good common-sense approaches to your electronic communication.
We can not reiterate this strongly enough - The CASL is not being put into place to destroy your business.
According to Deloitte and Touche, consent to receive communication can be implied in some circumstances. You do not need express consent if you are sending a message to a recipient that you have an existing business or non-business relationship with. You are also permitted to send communication to those who have their contact information conspicuously published or those who “voluntarily disclose their contact information without indicating that they don’t want to receive communications”.4
Below are some best-practices that you should have been observing over the past few years:
Use a legitimate newsletter service, such as Mailchimp or Constant Contact, that allows readers to unsubscribe.
Having subscribers opt in, rather than opt out when signing up.
If you are collecting emails and information at your front counter, you should have them tick a box on your manual form to agree to receive your mailings.
Don't buy lists from marketing agencies that tell you the list is clean. They would not have been able to provide the user with your information.
Provide an easy way to contact you or a link to your contact information.
Of course, there may come a time when someone accuses you of spam, even though your communication with them is not in violation of the CASL. With that in mind, be sure to follow best practices and avoid any overly-clever marketing techniques in your communication.
It is also important to note that the Canadian Anti-Spam Legislation is being implemented in stages. Beginning on July 1, 2014, the anti-spam provisions come into force and a 3-year transitional period begins. On January 15, 2015, consent and notice rules for the installation of computer programs come into force and a 3-year transitional period for this portion of the legislation will begin. Finally, on July 1, 2017, the private right of action is implemented, the transitional period for commercial electronic messages ends, and a mandatory 3-year review of the CASL will begin.
If you are still concerned or have been solicited by someone who claims that they can fix your problems, you can call us - free of charge - and we will be more than happy to have a discussion with you.
The Fine Print:
Csek Creative and its team are not lawyers or a law firm and we have no desire to become one. Legal advice should be sought from your legal counsel. If the CRTC don’t even want to step out on a limb, why should we?!