DMAC's Submission to the INDU Standing Committee Review on CASL

November 9, 2017 

Standing Committee on Industry, Science and Technology
Sixth Floor, 131 Queen Street
House of Commons
Ottawa ON K1A 0A6
Canada

RE: CASL perfromance to date.

It has been interesting watching how different organizations dealt with the new rules around electronic messaging.
 
We have watched human nature on clear display. 

I have authored a book, CASL Compliance: A Marketer's Guide to Email Marketing to Canadians with a focus on what you CAN do under CASL. I have tried to answer the only question I have heard marketers ask: "What do I need to do to be CASL compliant?”

In May 2004 the Candian Task Force on Spam published a report stating: “the need for a multi-faceted, multi-stakeholder approach: clear laws, new laws to fill gaps in existing law, strong penalties, and vigorous enforcement, all coordinated within an overarching legal framework that also facilitates the development of sound business practices, consumer awareness, public education, and international cooperation;” 

It appears our new law nailed many of these criteria, except “vigorous enforcement” and “consumer awareness”. Neither of those can receive full marks at this point in time.

The subsequent change to an opt-in regime has been far more difficult for many than it should have been. I believe communication of how to implement processes and systems that comply with CASL could have been better. I will address this in more depth. More vigorous enforcement often creates the opportunity for clear communication and consumer understanding.

I have been serving as President of the Direct Marketing Association of Canada for the past 5 years and in that capacity I would like to start out by saying thank you. Thank you for saving email marketing as a valuable tool for “legitimate business operators”, despite their excessive whining and complaining. Had ISED not designed and implemented CASL, open rates would have continued to decrease and email would have become an ignored medium and businesses, yes even “legitimate business operators”, would have continued pounding our inboxes with unwanted email (SPAM). 

CASL is simply a set of marketing best practices.
Had we thought about our customer or prospect when designing our initial email strategies, we would have:
1. asked for permission to send them messages.
2. allowed them to easily opt-out at any time.
3. been very up front about who we are
4. provided a way for the recipient to easily contact us.

In other words: CASL.

But for some reason, marketers and business people simply claimed any email address it could find as "ours", not realizing that address belonged to a real live person. Remember, we only ever knew mass media marketing before email came along. “More is better” was the marketing war cry.

And here's the issue: when one company sends an email to an individual it is generally not a problem unless it is an offensive message. But when hundreds of millions of businesses sends millions of messages to millions of people, things can spiral out of control quickly. Suddenly the individual has lost control of their inbox. Campaign Monitor recently reported there are:

 

180 Billion SPAM messages sent every single day.



We are here to explore the challenges CASL has faced during the first 3 years of enforcement. Keeping in mind I am a marketer and an entrepreneur. I have developed a Global Data & Privacy compliance trusted advisory (Newport Thomson) to consult with organizations to bring their processes and procedures into compliance.
 
The first issue is communication.
Placing Bulletins and Guidance documents on a publicly available website is certainly a start. CRTC has been good at providing practical examples of how they intend to enforce this law. As I see it, looking back over the past 3 years, CRTC has been methodical about their enforcement strategy. The first 18 months they provided clear guidance documents as well as a few examples of fines revealing how they planned to interpret and enforce CASL. We could whine and cry about the details, (many did and still are) or we could take that guidance and allow it to inform our decisions regarding processes and procedures within our organizations.

During the next phase - January 2016 - June 2017, we could see CRTC's attention clearly shift to creating MOUs with several countries. They knew that international enforcement was going to be a significant factor in the overall enforcement of CASL so Phase 2 was important.

On June 7, 2017 Minister Bains changed the game. 
While the postponement of the private right of action looked like the right thing to do at the time, the unintended consequences were devastating to the enforcement of CASL.

On June 7, 2017, interest of being CASL compliant died in the Canadian market. There is no interest or desire to be compliant at the moment.
Minister Bains said "indefinitely postpone PRA", the public heard (those who were paying attention) "delay CASL".  Their is currently NO interest in CASL compliance in the Canadian marketplace.

Just ask the lawyers who were fielding questions from their clients. Ask them if there was a difference pre-June 7 and post June 7. Being in the business of helping clients with compliance programs, we felt the impact immediately. The bulk of our business since that date has come from US companies and/or are for GDPR compliance - not CASL. We went from dozens of engagements to none regarding CASL in the 3 months following the June 7 announcement. Many of the small - mid-sized firms are moving on, expecting CASL to become yet another “Do Not Call List” - a law that is on the books but has the perception of having no teeth.

There is NO URGENCY to become CASL compliant as there is a perception that CASL is no longer being enforced. This Review inadvertently reinforces that belief, even though we know it was called for in the initial writing of the law. Public perception can be a very strange thing and often has nothing to do with reality. It is based solely on their hopes and dreams.

We believe this issue can be resolved by providing a set of effective enforcement tools for the CRTC and the other enforcement agencies.
If not PRA, then what? If it is the PRA, how can we place guidelines to reduce potentially frivolous lawsuits the major brands are so concerned about.

The next phase is to clearly communicate with the public. Business leaders must understand this law is being enforced. The consumer must understand how to report SPAM.

The only other issue I would like to address is IMPLIED CONSENT: Conspicuously Published. While this seems great for our B2B business leaders, it does fly in the face of the intended outcomes of CASL. We have dozens of clients with CP lists and they cannot get the open rates higher than the low twenties. That tells me there is a lot of SPAM going on under the guise of B2B marketing. SPAM being defined as "unwanted messages". Expand Existing Business Relationships to 2 years for all customers and those who express interest and cancel CP.  The 6 month consent creates more confusion than it's worth. This more aligns with what we are seeing out of the EU with GDPR and the ePrivacy law that is being reformed. 

The lawyers will argue the wording issues - what they call "ambiguous language" and I am certain you can tweak a few things and satisfy the many. There is a group of whiners who will never be happy - I call it the “Whah, Whah Crowd” lead by Barry Sookman and the CMA who represent the 2% of the large brands who would have been affected by the enforcement of the PRA on July 1, 2017.

From our perspective looking at many of their online web forms that are still not using CASL compliant language to collect express consent, these folks knew they were not compliant and were afraid of the legitimate class action lawsuits that would arise. They claimed concern about "frivolous lawsuits" but a simple check of their online opt in forms will verify our perspective.

Is CASL compliance a little inconvenient for businesses? 
Only because we were used to abusing email lists. One of my Associates signed up for OLD NAVY's email list and for the next 7 days received 4 emails a day until, out of frustration, she finally unsubscribed. So will OLD NAVY find CASL difficult to implement within their organization? Likely.

We have clients who just said, "let's do this right. Let's start treating our prospects and customers with respect." Their email lists are smaller but far more engaged (open rates went from mid-teens to 48% + within the first year). Email is working as it should as an effective marketing tool.

Overall CASL is right. 
Just get the ENFORCEMENT tools right and tell Canadians what CASL is all about, tighten up implied consent rules and let's continue returning the control of our inbox back to the rightful owner.

Sincerely yours, 
Derek A. Lackey

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