Will Canada’s New Anti-Spam Law Change Email and Social Marketing?

On July 1, the Canadian Anti-Spam Law, known as CASL, went into effect, and it could have big ramifications for content marketers.

The law, which was actually passed in 2010, is incredibly broad-reaching. It applies not only to emails sent to or from Canada, but also to text messages and communication via social media as well.

The law has a three-year grace period before penalties as high as $1 million for individuals and $10 million for businesses are fully enforced.

Implied versus express consent

On its surface, CASL seems pretty easy to comply with. Mass emails need to be permission-based, must contain an easy-to-find unsubscribe link, and have to include contact information from the sender. Sounds simple, right? Where it gets tricky, however, is the law’s distinction between “implied consent” and “express consent” in email lists.

Implied consent means that a customer has emailed your business, contacted you with an inquiry, made a purchase, or signed onto a mailing list by not unchecking a pre-checked box while buying something off of a website or filling out a contact form, for example.

Express consent, on the other hand, means that your subscriber actively signed up for your email list by entering their initials, checking a box, filling out a form, or even sending an email asking to be placed on an email list. This leaves a sizable gray area. For example, although verbal consent at a conference can be considered express consent, it is impossible to prove without a paper trail.

Companies that only have implied consent must obtain express consent from those on their email lists within two years in order to keep sending them messages. While this doesn’t have a big impact for companies with short purchase cycles, marketers with longer purchase cycles for more major purchases—such as furniture or cars—and who have grown accustomed to keeping people on an email list indefinitely may have a rough transition.

“It’s a lot of hoops to ask a customer to jump through,” says Toronto-based marketing consultant Saul Colt. “Wealthy people may replace a car every two years, but average people replace cars between four and six years. [Car dealerships are] going to have to do a lot of birthday notices, and every two years, they’re going to have to say, ‘Would you still like to receive my personal notes?’ This would really be a weird thing to say, because there is supposed to be a personal relationship between you and the salesperson, and that salesperson is now being forced to say, ‘Hey, remember all those personal notes that I sent you? I really mean them because I love you, but, at the same time, those are considered marketing.'”

These types of businesses may need to change their tactics and find new ways to engage these customers between sales.

“The longer sales cycle will need to get creative,” says Noah Fleming, a strategic marketing consultant based in Kingsville, Ontario. “If the only time a furniture company reaches out is when they want me to buy a new couch, then they’ve missed the boat anyways. They should be constantly engaging me in new and valuable content. They should be showing me how to get involved in my community. They shouldn’t just be reaching out any time they want to make a sale.

“Consider when I bought my Audi,” Fleming continues. “Three months after purchase I was sent a welcome package, a VIP card, and a magazine. To me, this was their way of bringing me into the Audi fold. How can you get people to take specific actions to become closer and more emotionally connected to your brand? Or how about shortening the sales cycle? Are there complimentary products you can sell in-between major purchases?” he asks.

An onslaught of requests for express consent

As CASL went into effect, Canadians found their inboxes inundated with requests for express consent; with businesses providing their contact number and mailing address, information on who is seeking consent (and, in some cases, on whose behalf), and asking people on their mailing list to give express consent.

Some marketers feel that these requests could be damaging for some companies. “Small business are really going to be hurt by this,” Colt says. “Personally, my email has been full of people trying to get consent from me, and it’s given me a great opportunity to ignore all of these emails and know that I won’t have to do anything going forward. This has been an amazing unrolling for me where I didn’t have to go in and manually auto-unsubscribe, because there were so many things I had forgotten about. People just hadn’t sent emails in the longest time, and now I’m absolved of ever seeing an email from them again. That’s wonderful for me, but it’s not necessarily wonderful for their business.”

But there’s a darker side to the onslaught of emails, even more ominous than businesses waiting right before a deadline and then rushing to gain consent. “There were spammers using the flood of recent consent emails to ask for consent as well,” Fleming explains. “They were sending messages to unsolicited or purchased lists, letting people know that their consent was ‘still’ needed,” he said.

Impact on social media

Marketers who respond to complaints on Twitter with a discount offer via direct messaging or an @ reply may need to find new tactics. That’s because CASL considers such offers to be commercial messages, and complaining on social doesn’t imply consent.

Social media teams will need to modify their responses to unhappy customers by asking them to contact a support team via email with information about their complaint, and offering a discount—if that’s the response they choose—via email rather than on social.

Fleming sees this as a better strategy overall. “Companies that have teams that sit and monitor social media complaints are responding reactively anyways,” he says. “Let’s not forget that people who take to social media to complain are like problem children. Here’s the better way. If someone complains using social media, simply give him a number to call and speak directly to a human. This can be someone in your social media department.

“Using social media as a tool to ‘answer’ and ‘handle’ complaints using coupons, promos, and discounts is just foolish and backwards. There’s no personal touch, and the customer knows you’re just responding because he/she has made his/her outcry public. How can you determine if the complaint is valid or invalid based on a tweet?” Fleming asks. “When did we make it a common practice to bend over for anyone with an issue and an iPhone?”

His approach? If a complaint is invalid, take the high road, but make sure to review a customer’s history to see if they’re just problematic. “Don’t give free coupons, discounts or promos to invalid complaints,” he advises.

If the complaint is valid, a better way to address it is to sincerely apologize to the customer, tell them how you’re handling the situation and how you’ll follow up to let them know what changes you’ve made—then actually follow up, not just give a reactionary freebie on Twitter.

*Disclaimer: This post is meant to be informational and not serve as legal advice, or as a substitute for legal advice.

Image by Freezelight
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