CASL: The Sky Isn’t Falling

  |  July 30, 2014   |  Comments

The newly introduced Canadian Anti-Spam Legislation has many adamant detractors, but if we don't take action in the U.S., we may be left with some "inept" legislation of our own.

The long delayed Canadian Anti-Spam Legislation (CASL) came into effect on July 1. While there are many guides to CASL and how to ensure you are compliant, there are also a goodly number of commentators who have gone total Chicken Little about the whole thing.

Slate ran a piece entitled "Canada's New Anti-Spam Law Is Both Horrifying and Stupid." It claimed that Canadian small businesses are "terrified" and presented a baffling and imperialistic perspective by trying to apply American standards of free speech to Canada. Ken Magill has described it as "[the] most dumbassed anti-spam law in the history of the universe" and has repeatedly maligned it as poorly conceived and inexpertly written.

At the same time, there are plenty of supporters of CASL, especially north of the border, so what's going on? I think the heart of the matter is a fundamentally divergent perspective on data and privacy.

Michael Geist, the Canadian law professor, wrote a defense of CASL and in part two he argued that CASL is really a consumer protection law. He caught some flak for this assertion, but I agree with him. Who owns your personal information and what they're allowed to do with it matters, and it matters more every day.

When I first moved to America, almost 20 years ago, the freedom companies had in regards to people's personal data came as a huge surprise. Despite the many similarities between the U.K. and the U.S., there was a basic difference in perspective on this topic. The American view that data about people is a commodity that can be bought and sold with very few limitations is at odds with the European perspective. In the European view, an individual has an interest in and rights over data about themselves. Companies do not own data about their customers but rather they're given limited rights to use that data.

Another thing that surprised me about living in America is the general distrust of the government combined with trust in business. From my European perspective this seemed counterintuitive. The government is accountable to the populace through elections. It's called "public service" for a reason. Businesses, however, are accountable only to their owners. Thus, while Europeans often look to government regulation to curb the excesses of the private sector, Americans more often try to keep government out of the way, opting for private solutions over public ones.

The furor around CASL interests me not just because of its impact on email marketing but because of the changes sweeping across the advertising and marketing worlds. We are undergoing seismic shifts and the changes are fundamentally about data, customer data.

As marketers we have access to more data than ever before and we do some amazing things with that data. But there's a trust deficit. Consumers - our customers, the people who are essential to our success - do not trust us with their data. They're becoming increasingly concerned about what is being collected about them and how that information is being used. Articles like this and this are becoming commonplace.

It is surely inconvenient for a company to have to inform a customer when they're being added to a mailing list and make sure they understand what they're signing up for. It is no doubt worrisome that failure to do this may have legal ramifications but we're entering the age of the customer. Customers have more power and a louder voice than ever before. Their goodwill and trust translates directly into brand value. Failure to act as effective custodians of our customers' data, respecters of their privacy and rights, will widen that trust gap.

How we approach customer data, whether we see it as a commodity for us to own or an asset we hold in trust will have a substantial impact on how our industry shapes up. Instead of looking at CASL and customer data through a purely American lens, we would do well to recognize that the Canadians and the Europeans may be onto something. Even in this regulation-averse country if we don't take action as an industry we may find that the congressional hearings on data breaches, data mining, and data brokers lead to some "inept" legislation of our own.

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Derek Harding

Derek is the managing director of J-Labs, Javelin Marketing Group's technology skunkworks, a role that draws on his 20 years of experience and leadership in the fields of marketing and technology. A British expatriate based in Seattle, Washington, Derek is perhaps better known as the founder and technologist behind Innovyx, one of the first email service providers later acquired by the Omnicom Group. An industry veteran and thought-leader, Derek is a regular expert author, contributor, conference speaker, and takes an active role in a number of industry and trade groups.

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