Since the postponement on June 8th of the private right of action section of the CASL law, a number of clients have contacted me asking if they are now off the hook in terms of needing to be CASL compliant by July 1st. The simple answer is NO. The private of action is only one section of the law. Make no mistake, the CRTC began enforcing July 1, 2014 and continues to do so today and in the future. If you are not compliant today you are indeed violating the law.
Let me explain the implications of the specific decision around the private right of action. For 90% of the organizations in Canada the postponement of the private right of action announced by Minister Bains on June 8 has no material affect. The leading 10% of the brands who send a ton of email were always most at risk.
Fact is some small business in Sweaburg, Ontario would have likely never seen a class action lawsuit over their email practices even if the PRA had come into force on July 1 as planned. Minister Bain's actions were very responsible.
The average consumer gets an email form a well-known brand and says, " I am going to collect my $200" by joining a class action lawsuit that they read about in the newspaper or online. They are basing this action on the fact that they did not give this brand their consent. So far, so good.
But they are not likely aware that that brand meets the measures of IMPLIED CONSENT under CASL are legally sending emails.
Multiply this by hundreds of emails to millions of people taking unnecessary action causing chaos and frivolous lawsuits that would have been a serious distraction for many of our largest organizations in Canada. The small legal firms who launch the class action suits, the large legal firms who would be bought in to help defend their clients, and the management team distractions would all lead to a lot of wasted dollars for very little return. And to his credit, Minister Bains listened to a call for fairness and order.
The rest of the CASL legislation is still the law and the business risks of ignoring it are still significant. Officers and Directors can be held responsible for the fines and the majority of the business community knows they have to adjust their electronic messaging policies and procedures in order to comply. We have seen cases where companies had long ago implemented email marketing best practices, based on listening to their customers and giving them more of what they wanted and less of what they don't. They stopped emailing those who did not open their emails. They only sent relevant information at relevant times.
For those who see the law as “big brother” stepping in, I invite you to stop complaining and start thinking through your electronic messaging programs and what is best for your clients and prospects. You will come to the conclusion that CASL - while now being the law of the land - is also darn smart marketing. What brands want to annoy their customers and prospects? What brand sets out to execute programs that consistently produce 19% open rates? That means 81% of your email list is ignoring you! Could you produce the exact same (or possibly even better) business results if you only emailed the 20% or so who are interested?
In email marketing more is not better. Interested and engaged is better. Quality over quantity for sure. Maybe when buying mass media more is better, but these one-to-one marketing tools we are embracing come with a different set of rules. These are meant to be dialogues with interested parties not the traditional one-way brand dump that we have always known how to do.
"GREAT EMAIL STRATEGY CANNOT BE EXECUTED WITH A MASS MARKETING MENTALITY. PERIOD."
As a CMO of a large brand I would have two marketing teams, one managing our mass marketing and one handling our one-to-one marketing programs. They require completely different mindsets. The strategies and tactics change, yet all we know is to "promote the brand", "pummel them until they submit".
When asked recently why the Government needed to implement CASL I replied, " because we are marketers". If you give us a relatively free way to pepper as many people with as many messages as we can, we’ll take advantage of it. We’re marketers, we can’t help ourselves. Remember we used to have to buy our 'eyeballs' from media barons at a premium so having tools like email and social media marketing is a UREKA for most marketers. Like I said, we're marketers. What did you expect? Our abuse of people's inboxes created the need for our Government to step in and add some order - to protect Canadians from us marketers who have not distinguished mass media marketing from one-to-one marketing.
So let's wake up marketers. Listen to your consumers. Create meaningful dialogues and stop spamming people so you can feel good about "making your numbers". Let's just put on our big boy pants and obey the law. It is a little work at the front end that will pay huge dividends in the end.