There are many articles that discuss whether CASL is good or bad for Canada. That discussion on either side of the argument could span for pages and pages. While the goal of this guide is not to go incredibly in-depth into these arguments, it is important to touch on them briefly so that you can carry on a conversation at the water cooler.
CASL will not stop spam. Canadians will have as much spam in their inbox after July 1, 2014 as they did before. The most egregious spammers were not following the rules before and they’re not not going to follow them now. Plus, most of the spam that Canadians receive originates from outside the country despite the claim that international offenders will be prosecuted, which is easier said than done.
Spamhaus, a highly respected anti-spam organization, publishes a list of the Top 10 worst countries that send spam. This list generally includes USA, China, Russia, Ukraine, Japan, United Kingdom, Brazil, France, India and Germany.
Who is noticeably absent from that list of countries? Canada!
The country that now has the most strict spam law in the entire world, isn’t even on the list of countries that really need a strict spam law.
So, if the law is not going to impact the actual bad spammers, who does it effect? The answer: legitimate businesses that were probably employing “best practices” beforehand. But now those businesses have the burden of having to comply with an unbelievably broad regulation that governs all forms of electronic communication.
There are a lot of people in the country who strongly believe that the costs and annoyance for companies significantly outweigh the purported benefits, particularly in the case of smaller companies.
Plus, the ISPs of the world and all of the anti-spam software companies have gotten really good at weeding out the good emails from the bad. By that token, Canadian inboxes were in a large sense already protected from spam, so did we really need this massive piece of legislation?
The law has also been criticized as overkill with the size of the fines not matching the crime (one million dollar individual fine and ten million dollar corporate fine) and is out of proportion for the nuisance of spam.
Think about the small business who certainly doesn’t have a lawyer on retainer to help navigate the murky waters of CASL. A salesperson working for that business sends an email to a potential customer in an effort to drum up a new account. That email is not CASL-compliant, but was sent with the best of intentions and is far from flagrant spam. When the recipient gets that email, and assuming it is after July 1, 2017, when the “private right of actions” kicks in, that recipient can sue the small business for ten million dollars. That one email has the potential to cause a sequence of events that puts that company out of business because it definitely cannot afford a penalty like that. So, how is this law benefiting the Canadian economy, which is fueled by small businesses that find themselves in a similar position?
The law is also written in a way where it can be so complicated to interpret that the only true winners of this legislation are the lawyers who are going to be paid tremendous amounts of money to decipher what is or is not compliant.
While the goal of CASL may have been a noble one to help Canadians, it has manifested itself into a piece of legislation that will hinder commerce in Canada and put Canadian organizations of all sizes at a disadvantage against their international counterparts.
The world has gone digital, but Canada does not have a comprehensive rulebook that establishes what is and is not allowed. Without rules, there is anarchy that can spiral out of control, and a modern day economy cannot thrive with that sort of wild west mentality. CASL corrects that problem by prescribing a set of practices and procedures that sets everything on the right track for future prosperity.
From a consumer perspective, it should cut down on a lot of unwanted emails, allowing Canadians to be more productive. This is not to say that it will stop all spam, but at the very least Canadian organizations will no longer be able to secretly add you to their mailing list.
If an organization has been following good practices, including a proper double opt-in procedure (also called “closed loop”), having a valid unsubscribe link, not being deceptive at all, then that organization is largely compliant already.
The grunts and groans of organizations that have to make changes are because their hand is being forced to make a change from what they are currently doing to following a more stringent set of best practices enforced by law. Setting guidelines that explicitly describe how to obtain consent, instead of leaving it completely arbitrary, will aid consumers and businesses.
The goal of CASL is not to force everyone to slash the size of their mailing list, but rather take some time to look inwards and see if the organization is actually emailing the right people. The special “transition” period gives organizations extra time to continue emailing people that have implied consent, so there is no major disruption due to the law taking effect. For those that don’t have implied consent, running a reconfirmation campaign will let an organization identify who is actually interested in their message so they can be focused on. After all, sending an email to 1,000 people that are highly interested in your content is much better than sending an email to 10,000 people that won’t even open up your email.
Furthermore, there stands to be a big benefit for those organizations that do everything properly and become CASL-compliant simply because there will be less clutter in a subscriber’s inbox. In a pre-CASL era, a consumer may receive emails from ten different organizations, where each one is competing for attention in the inbox. In a post-CASL era, that same consumer is only going to get emails from three different organizations that they really care about. If your organization is one of those, then you can expect more focus and greater engagement.
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