February 26, 2013

Canada’s Impending Anti-Spam Legislation: What You Need to Know to Be Prepared

by Chris Kolbenschlag, Director of Deliverability at Bronto

This article by Bronto's Director of Deliverability, Chris Kolbenschalg, first appeared on eM+C.

In the next six months, we expect to hear the final regulations on the Canadian Anti-Spam Legislation (CASL). Since this date is quickly approaching, I spoke to one of the leading experts on CASL, Neil Schwartzman, executive director of the Coalition Against Unsolicited Commercial Email (CAUCE).

According to Schwartzman, there will be some challenges, including an additional expense to make sure email marketers are compliant with the impending regulations. More importantly, however, marketers need to understand the implications of these new regulations now before enforcement begins.

Schwartzman provides the following tips to help email marketers become CASL compliant:

  • start collecting time and date stamps of opt-ins;
  • collect screen shots of disclosure language;
  • don't send to those who didn't opt in; and
  • request opt-ins from those who have purchased (up to two years ago).

Pre-checked opt-in boxes

Pre-checked opt-in boxes have been gaining popularity recently, making it the visitor or buyer's responsibility to take the action to unclick the box to opt out. If CASL has its way, opt-in boxes will need to be unchecked or removed completely. Schwartzman hopes this will be re-examined as the terms are poorly defined in the current version of the proposed legislation. "It's defined as either an unchecked box or not a box at all, which is wrong," said Schwartzman. While the industry continues to advise against a pre-checked opt-in during checkout, losing an opt-in box would greatly hurt list growth.

Q: What advice would you give marketers who have collected email addresses with a pre-checked box or with unclear permissions?

NS: If the addresses were collected via purchase list or append, there's no permission and these addresses shouldn't be in your list at all. You should also remove people from your list who haven't interacted with your messages in the past six months. Email marketers aiming to improve deliverability shouldn't be looking at just open rates, they should also be focused on clickthrough rates and getting customers to purchase again. To be safe, give these recipients another chance to opt in.

Under the implied consent rule, you can send to those who have purchased within the past two years. But be sure to ask them if you can continue to send email marketing messages to them by securing the opt-in.

Verbal consent

"Make sure you collect time and date stamp, and the script used as evidence, should you ever get a call from regulators so you can provide the phone number, business card (evidence), etc.," said Schwartzman. "It's very important to keep track of all this, as you would with other customer data." 

Point-of-sale collection

"Part of the issue Spamhaus had with marketers was the number of outdated email addresses on a list for a long time that weren't engaging (i.e., opening, clicking)," said Schwartzman. "I don't think anything under CASL is differentiated by any point of collection. As long as disclosure is clear, as well as IP, time and date stamp, you shouldn't have problems with compliance." 

Q: There's talk that "CASL will do nothing to stop spam." What's your take on that?
NS: CASL won't take care of all of it, but it will help to make the experience for the end user better. It's going to make sloppy marketers into better marketers. There's a lot of corner cutting going on with marketers and this will discourage that tendency, making legitimate marketers smarter and further differentiating them from spammers.

Marketers should be aware of the changes that may be implemented by CASL so they can prepare to be compliant before the law goes into effect. Take note of these potential changes and start to implement them where you can to begin to protect your liability and make the transition to CASL easier.

Chris Kolbenschlag
Director of Deliverability at Bronto


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Chris Kolbenschlag, Director of Deliverability at Bronto

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