This guest post from Matt Vernhout explores the impact Canada's anti-spam legislation will have on email marketers, and offers tips for how to prepare for the upcoming changes.
Note from Jeanne: When I spoke at ClickZ Live Toronto last month there were a number of questions about Canada’s anti-spam legislation (CASL), which takes effect soon. I realized that it would make a good topic for an article – and I also realized that I learned most of what I knew about the legislation from Matt Vernhout, chief privacy officer and manager of deliverability at Inbox Marketer and a long-time industry friend. So rather than paraphrase his words, I asked him to guest write a column for me and he graciously agreed. So without further ado, here’s Matt and a good primer on CASL.
On July 1, 2014, sending commercial electronic messages to customers and prospects will get a little more complicated for most businesses. Canada’s anti-spam legislation (CASL) is set to come into force and bring along with it potential fines that could reach into the millions. With this legislation, businesses that want to connect with their customers and prospects over digital messaging channels like social media, email, install applications, and computer programs, or programs that alter data during transmission will face new challenges.
Under the anti-spam legislation, a commercial electronic message (CEM) is defined as a digital message sent to any electronic address (i.e. email address, social media account, text message) that promotes or advertises a product, person, event, investment, or business. In more general terms, if there is any commercial activity tied to the message it would be considered a CEM under CASL.
I’ve been working with the CRTC and other organizations on this legislation since it was first conceived; since then I have attended conferences and seminars all over North America talking to marketers about CASL, privacy, and deliverability in email. The main thing most marketers want to know is what the impact of CASL will be on their messaging programs and how email acquisition, list growth, permissions, social media, etc. should be handled in the future.
Many top marketers have already created and implemented Email Welcome Programs, but if you’re one that has not yet gotten around to doing so, implementing one will be crucial under CASL. Welcome programs are easy to implement and help to facilitate and reinforce the prescribed information in your email programs. The key to any good Welcome Program is to:
A welcome program also gives email marketers a means to contact your subscribers early on in the relationship, which, according to much research, tends to increase engagement over a subscriber’s lifetime.
Forward-to-a-friend (FTAF) buttons are as old email itself, but under CASL they are likely to disappear. With CASL’s focus so much around obtaining proper consent, marketers will likely find themselves not in compliance if they send any electronic messages to someone who has not directly opted-in, which happens in a forward-to-a-friend email. A due diligence defence exists in CASL, if those who promote FTAF campaigns can prove that the person sending the forward is sending these emails to a family or personal relationship as defined by CASL. This would exclude a range of people from being eligible to receive FTAF messages (ex: co-workers, where there is no personal relationship established, only a working relationship). In order to have proper due diligence, the person triggering the emails would need to provide evidence of a family or personal relationship and agree that the people they are planning on sending these FTAF emails to meets this definition. Providing evidence of family and personal relationships can then be used to reduce their liability under CASL but not eliminate it completely. If this isn’t a clear call to remove your Forward to a Friend buttons and upgrade to a social sharing program then I don’t know what else would be.
Lastly, email appends and email purchasing will be deemed unlawful under the new legislation. Email appending is the practice of matching known customer data (first name, last name, and postal address) against a vendor's database to obtain email addresses. Consent has not been provided by individuals in these cases and sending an email to ask for consent is considered a CEM under the law. These practices have always been a matter of concern for many email marketers and email service providers and will finally come under rule with CASL.
List growth is where CASL may have its greatest impact. While many marketers have come to expect their email lists to grow at a healthy rate each year, under CASL marketers will likely see growth decline. With CASL, marketers are going to need to be more tactful with their list growth practices to maintain this rate, and even so their lists will likely grow at a slower rate.
The reason behind this is that CASL requires opt-in consent. Under CASL there are two main types of consent for messages: express consent and implied consent. Express consent is defined as a positive action taken by a user to provide consent (i.e. checks an unchecked box granting permission) and remains valid until the user withdraws consent by asking to be unsubscribed from future CEMs. In contrast, an implied consent is only considered valid for a period of two years after the consent is granted. The Canadian Radio-Television and Telecommunications Commission (CRTC) clarified that pre-checked boxes will not meet the requirements for express consent under the legislation.
Under CASL marketers will also face an "expiry of consent." In a pre-CASL world, marketers could keep subscribers on their list for all eternity (or at least until the email address bounced out); come July 1 this will not be the case. According to CASL regulations, once you have implied consent for a contact, you have two years to mail an individual or to gain express consent. For organizations with short purchase cycles (i.e. grocers, financial institutions, retailers) this won’t likely pose a challenge. However, for those businesses with long purchase cycles (i.e. appliances, automotive, furniture) this will likely have an impact and force marketers to rethink their contact strategies. This is not all bad news, as it will encourage marketers to implement new lifecycle programs that target and engage customers in between major purchases and lead to increased lifetime revenues.
The key for marketers will be to build a better sales funnel and to be more aggressive in their list growth strategies in order to both attract and retain subscribers.
CASL is going to encourage marketers to move their implied consents to express in order to retain more customers. Preference centers will likely prove to be a popular approach, providing customers with greater control over their subscriptions. With a preference center, subscribers can also be presented with options to "opt-down" rather than "opt-out" completely (this is still a required option, though). This means that if you typically send a "daily," you would provide a choice to your subscribers to instead receive a "weekly," "monthly," or only on specific topics of their choosing. Providing granular control typically leads to reduced list fatigue and churn.
Due to the "expiry of consent" for implied subscriptions, re-engagement programs will be given a higher priority under CASL. Because there is a two-year window, marketers will be encouraged to try and re-engage subscribers before they are lost for good. Four steps to a successful re-engagement program are:
CASL doesn’t only pertain to email marketing. Under CASL all electronic messaging platforms are covered, including social media. The two questions you will need to ask yourself about your social media messaging are:
As CASL only covers CEMs that are both direct (sent to one or more recipients) and commercial in nature, there will be instances where sending your followers direct messages is permissible. For example, if someone follows you on Twitter you are able to send them a message saying, "Thanks for following us on Twitter," as the purpose of this message is not commercial.
CASL does however cover those messages (direct messages or @replies and mentions) that are commercial in nature. For example, you own a chain of restaurants and receive a complaint via Twitter that the service they received was awful. You respond by issuing an apology and offer a discount of 10 percent on their next visit to the restaurant. This would be in violation of CASL, as the message is regarded as a CEM under CASL.
Training your social media team on how to engage consumers on Twitter with non-commercial messages will be a key solution to protecting your brand under CASL. Many of the social listening tools currently in use will still be able to be used but, your team will need to understand the consent requirements when dealing with inquiries, quotes or complaints. The messages being sent to users with these tools will need to be tailored in a non-commercial way when being sent to an electronic account (i.e. "We are sorry to hear you had a bad experience, can you contact our support team email with more details?").
Digital marketers should not expect to see their email metrics decline after July 1 when CASL comes into effect, but they do need to ensure that they’re properly prepared for its implementation. It would be advised that marketers review their messaging strategy including list hygiene processes, pre-deployment rituals, and deployment processes to ensure that all requirements are met. Don’t wait until the last week to roll out any changes. Be sure to give your team time to confirm these processes are working properly and the updates are being recorded in your new database fields.
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Jeanne Jennings is a 20 year veteran of the online/email marketing industry, having started her career with CompuServe in the late 1980s. As Vice President of Global Strategic Services for Alchemy Worx, Jennings helps organizations become more effective and more profitable online. Previously Jennings ran her own email marketing consultancy with a focus on strategy; clients included AARP, Hasbro, Scholastic, Verizon and Weight Watchers International. Want to learn more? Check out her blog.
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