Canada’s Anti-Spam Legislation: the good, the bad, the ugly of a post-compliance world

Now that CASL has been live for about a month, it’s a great time to go one step deeper and really see what impact this legislation is having on the marketplace. After traveling across Canada and the United States to reach out to marketers in a variety of industries, I have a unique perspective on the ramifications of this new anti-spam law. Couple that with the tremendous amount of phone calls we receive at Elite Email every day, and I can put together a good pulse on how the post-CASL era is treating businesses both in Canada and abroad.

At the heart of this discussion surrounding CASL are a few simple, yet poignant questions regarding the legislation. Is this new set of laws good or bad for the industry? Is it actually solving the spam problem? Is the stated goal of “promoting the efficiency and adaptability of the Canadian economy” being achieved? To answer these questions, and many others, let’s take a look at the good, the bad, and the ugly effects popping up from CASL implementation so far.

The ugly side of CASL

The roots of CASL go deep into the past of the Canadian anti-spam movement. In May of 2004, the Federal Task Force on Spam came into existence for the explicit purpose of fighting back against those who abuse the inbox. This objective was most definitely a noble one, in that it sought to stymie the flow of unsolicited emails that bombard Canadian consumers. A decade later, the end result of this task force’s hard work is CASL as we know it.

The big problem with this push? While respectable brands and organizations care about upholding this law, spammers still could not care less about CASL. Whether it’s that royal family from some distant corner of Africa that’s looking to drop millions in your bank account, or companies that just aren’t afraid of consumer and governmental backlash, the people sending the most obvious spam just don’t care.

This is mainly because the majority of this spam comes from remote locations far outside of Canada. Even with the hard line taken by the government and the promise to punish all wrongdoers, the truth is that it’s very unlikely that someone from the CRTC will physically bring to justice a spammer living far, far away.

In reality, the government would rather trade this losing battle for one that it can win – imposing the law on organizations that operate in Canada. The only problem? How many truly offensive or destructive spammers call this country home? If you’re familiar with Spamhaus’ “Top 10 Worst Spam Countries” list, you know that Canada has never even warranted an honorable mention, yet now we have the strictest anti-spam laws in the world.

So who is this law actually impacting? Unfortunately, the ugly answer to all of this is that CASL might just be creating a bureaucratic nightmare, lined with red tape and headaches, for the brands trying to do things right in the first place. In short, CASL could be putting marketers here in Canada at a disadvantage when compared to their international counterparts, all while doing little to curtail the flow of spam coming from foreign sources.

Is this really achieving the outlined goal of helping grow and fortify the Canadian economy?

A look at the bad side

Whether it’s here in Canada or down in the States, everyone always has the same reaction to the new CASL guidelines – frustration, anger, and even disbelief. The problem here isn’t that these people are rebels without a cause. In fact, they have no problem playing by the rules. The real issue is how extreme the rules of the new law are.

We’ve worked with plenty of marketers at Elite Email that understand spamming only damages the connection their companies have with consumers. These businesses are not spammers. The people they are reaching out to don’t see them as spammers. Unfortunately, that doesn’t stop CASL from bringing down the hammer on these brands with sometimes oppressive instructions on how to conduct business and marketing practices.

CASL actually does many great things for recipients of email marketing campaigns. Mandatory unsubscribe buttons are great. So is cracking down on misleading subject and sender information. However, is creating unnecessary extra work, such as auditing each individual form to make sure it says, “You can withdraw consent at any time” really the best way to enforce CASL and grow the Canadian economy?

The entire legislative package seems to be designed to make the marketer’s job harder. This doesn’t mean connecting with your audience is impossible; it just means Canadian companies now have to jump through a lot of hoops. Email marketing is still powerful, but it seems like the real winners of CASL are the lawyers. After all, the burden of staying in line with these rules can require so much from internal or external legal counsel, that it’s hard not to view this as creating a disadvantage for Canadian businesses on the global stage. Think about it this way: if an American company has a cool new thing they want to try in the world of email marketing, they can do it right away. They’re not becoming spammers, they are savvy marketers launching an engaging campaign. If that same marketer was in Canada, and had the same cool new idea, before they even make the first move, they need to carefully explore if they are in full compliance with CASL.

To stay in compliance, marketers have to audit their databases regularly, enact new policies, reconfigure daily workflow, and set in motion a substantial amount of other practices. For many organizations, it’s hard not to get swept under the rising tide of red tape and extra work from CASL.

Essentially, this is putting online marketing in Canada on a very uneven playing field. While the rest of the world keeps chugging along and can leverage email as the marketing channel with the highest ROI, organizations in Canada now have to reevaluate their marketing communications strategy because outrageously ill-proportionate CASL fines are looming over their shoulder.

CASL’s silver lining; the good side

After all of this, you’re probably surprised that there’s even a “good” section to this article at all. In truth, there is still plenty of upside to CASL. First off, it makes sense to have the government protecting Canadian consumers in the digital marketplace, since the continued rise of Internet usage and online connectivity doesn’t seem to be slowing down anytime soon. Now, Canada can shed the distinction of being one of the few countries without legislation covering the usage of electronic messages.

Additionally, it’s nice to see that CASL cracked down on some of the oldest tricks in the book. In particular, pre-checked sign-up boxes on forms are no longer acceptable. While some might be sad to see this underhanded tactic go the way of the dinosaurs, the truth is that pulling a fast one on your audience was never a recipe for sustained success anyways. Now, mailing lists are inherently higher quality and more stable because the people signing up actually want to be a part of the experience. To put it plainly, this new approach emphasizes quality over quantity to a great degree.

If your mailing list has 10,000 people on it, but it’s always the same 20 per cent that open your messages, are the other 8,000 individuals really adding any value to the list? Sending messages that do not produce engagement and activity doesn’t help your bottom line. CASL forces marketers to cut out the fluff on their lists, which in turn helps them hone in on the right people. If there’s one thing you can’t deny about email marketing, it’s that when you connect with the right person, at the right time, with the right content, ROI can go through the roof.

As lists move toward compliant members only, it’s natural to see message volume decrease. However, is having open rates and click-through rates rise at the expense of reduced send volume numbers really that bad of a trade-off? Plus, adding in stricter compliance regulations will eventually push certain brands out of the inbox and that means more time, attention and engagement for your brand that is compliant.

For those that adapt and evolve in the post-CASL world of email marketing, the potential for successful campaigns is still there. The CASL Survival Guide put out by Elite Email has been downloaded a tremendous amount of times because it doesn’t seek to just highlight the challenges of CASL, but rather explains how to overcome them. This legislation definitely has some weak spots and head scratchers, but the implementation of this law doesn’t mean that the core fundamentals of engaging consumers in the inbox have changed at all. As long as marketers’ methods line up with the new regulations and we all focus on committing to great content, the new hurdles set up by CASL will be no match to the success of a great email marketing campaign.

Robert Burko
Robert Burko
Robert Burko is President and Founder of Elite Email, a world leader in email marketing solutions. As one of Canada's chief email marketing and digital marketing specialists, Burko has appeared on national television, radio, podcasts, and in countless print publications and blogs across North America. He is one of only two authorized speakers for the Email Experience Council in Canada. Having worked with both small and large organizations around the globe, he has provided insight for popular local and international brands. In 2011, Robert won the Toronto Board of Trade "Under 30" Business of the Year award. He currently lives in Toronto with his wife and daughter.

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