Advertising & Marketing Law Conference

Canada’s Anti-Spam Law January 26, 2012 Wally Hill Vice-PresidentPublic Affairs and Communications Canadian Marketing Association Matt VernhoutDirector, Delivery & ISP Relations TC Media

Spam Facts Spam: The use of electronic messaging systems to send unsolicited bulk messages indiscriminately (Wikipedia)  Ranges from the annoying to very harmful  Pernicious activities like malware, spyware, phishing and other frauds are lumped into the category of “spam” Spam accounts for 45-90% of email traffic  Symantec’s June 2011 report pegs it at 73%  Hotmail/MSN blocks between 85 and 95% of incoming messages at the network edge each month Scams & frauds amount to less than 2% of traffic  E.g.: one in 330 emails is a phishing attack (Symantec)Canada has High Rate of Blocked EmailExamining commercial email success rates in the two countries comprising North America, the study finds Canada, with a roughly 85%success rate, has a disproportionately high rate of blocked emails (12%). Meanwhile, the US has an 86% success rate, with only 6% ofcommercial emails blocked. - Return Path B2B email delivery report - Sept 2011

History Spam laws in all G-8 countries since mid-2000’s U.S. CAN-SPAM law in place since 2003 Canada’s Anti-Spam Task Force – May 2005 report  Key recommendations:  Legislation and enforcement  International co-operation & enforcement  Spam co-ordination centre  Strong best practices for ISPs, networks and emailers  Consumer education

Recent History Part of Canada’s Digital Economy Strategy Election commitment of current government Canada introduces legislation April 2009

The CASL Journey 2004-2005 2009 MAY 2010 DEC 2010 Q2 2011 Q2/3 2012Federal Anti- C-27 Electronic C-28 Fighting C-28 Receives C-28 C-28 Spam Task Commerce Internet and Royal Assent Regulations Enforcement Force Protection Act Wireless Spam (with no short presented by begins (FAST-F) (ECPA Act (FISA) name) Industry Canada Government Prorogued Elections Elections 2011 Two CASL is not in effect until proclaimed “in force” by the Government and detailed regulations are in place

What Does CASL Cover?Purpose: Promote the efficiency & adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct (a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities; (b) imposes additional costs on businesses and consumers; (c) compromises privacy and the security of confidential information; and (d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad.

What Does CASL Cover? Commercial Electronic Messages  Limited to computer systems located in Canada used to Send, Route or Access electronic messages Installation of Computer Programs

What is a CEM?Commercial Electronic Message (CEM) An electronic message that one can reasonably conclude has as its purpose to encourage participation in a commercial activity, including an electronic message that:  Offers to purchase, sell, barter or lease a product, goods, a service  Offers to provide a business, investment or gaming opportunity  Advertises or promotes anything referred to above  Promotes a person, including the public image of a person, as being a person who does anything referred to above, or who intends to do so  Contains a request for consent to send a CEMCEMs sent between individuals with personal or family relationships (asdefined) are exempt from these requirements

CEM RequirementsConsent requirements Must clearly & simply set out purpose(s) for consent Must obtain express consent to send CEMs unless there is an  Existing Business Relationship (as defined) OR  Existing Non-Business Relationship (as defined) May rely on implied consent to send CEMs to recipients with an Existing Business or Non-Business Relationship  EBR last for 2 years from last transaction

CEM RequirementsConsent is not required when the CEM solely: (a) provides a requested quote or estimate for the supply of a product, goods, a service, land or an interest or right in land (b) facilitates, completes or confirms an agreed commercial transaction (c) provides warranty information, product recall information or safety or security information about a used or purchased product, goods or a service (d) provides notification of factual information about (i) the ongoing use or ongoing purchase by the person to whom the message is sent of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship, or (ii) the ongoing subscription, membership, account, loan or similar relationship (e) provides information directly related to an employment relationship or related benefit plan (f) delivers a product, goods or a service, including product updates or upgrades, that recipient is entitled to receive under the terms of a transaction that they have previously entered into with the person who sent the message or the person — if different — on whose behalf it is sent

CEM RequirementsMessage content must:  Identify all known sender(s)  Provide sender(s) contact information  Provide an unsubscribe mechanism for all sender(s)  Unsubscribes must be honored within 10 business days  Mechanism must be valid for at least 60 days  Mechanism must be provided at no cost

Transitional Provisions Implied consent may be used for Existing Business & Non-Business Relationships for up to 3 years after the regulations come into force provided that:  Relationship already includes communication via CEM  Individual has not withdrawn consent  All unsubscribe requests going forward are honored

Consequences CRTC:  Up to $10 mm per violation for Corporations  Up to $1 mm per violation for individuals Other penalties:  Administrative Monetary Penalties (AMP)  Can be avoided by entering into an “undertaking” for honest mistakes  Private rights of action, with statutory damages  Fines  Imprisonment In many instances; officers, directors, agents and mandatories face liability if they directed or acquiesced in the violation

CASL Status & Regulations CASL is not in force- date will be set by the Federal Cabinet – often announced alongside gazetting of final regulations July 2011 – Industry Canada and CRTC issue proposed regulations for comment by September 7 Sept 7, 2012 – end of 60-day comment period on proposed regulations; government considering many comments; holding discussions with stakeholders Oct/Nov/Dec 2012 -- Government reviews stakeholder feedback, coupled with informal consultations  Government normally takes 60 days to finalize and Gazette the cabinet-approved regulations Jan 2012 – Some signals that Government may Gazette additional regulations or re- gazette regulatory package in February  With a 30 day comment period, we could see final regulations in May/June Looking ahead - Work progressing on regulations - CASL implementation could be later 2012 depending on “notice” period

CASL vs. CAN-SPAM: KeyDifferences CASL  Addresses broad range of Internet issues  Applies to all forms of electronic messaging (email, SMS, IM, etc.)  Prior Permission based  Private right of action: available to anyone (individuals, businesses, etc.) CAN-SPAM  Addresses spam only  Applies only to email, contains SMS domain opt-out  Opt-out; you can technically mail any person at least once  Private right of action available only to ISPs, and Government

Types Of MessagesCommercial Offers to purchase, sell, barter or lease a product, goods, a service, land, promotes a personTransactional Provides a quote or estimate, completes or confirms a transaction, warranty, product recall or safety or security informationPrimary Purpose(CAN-SPAM only) 80/20 rule applied to transactional content with commercial up sell or add-on

Identification Recommendations CASL requires senders to:  Identify themselves  Indicate on whose behalf the message is sent  Provide up-to-date contact information

Data Maintenance Recommendations Recommendations:  Enable reply to email unsubscribe that get sent to your customer service team  Stop using “no-reply@” emails  Strict data hygiene and sun-setting programs Sun-setting Process (example):  At 18 month - Send a reconnection message to your subscribers, entice them to be come active again.  At 22 months – Send a reminder and notice of pending unsubscription  At 24 months stop mailing

3rd Party Email Recommendations List owner - Banner  List owner from address and logo/branding  3rd party Logos/content  List owner unsubscribe  Contact info for both parties  3rd party message notice  Postal info List owner - Footer

SMS Recommendations Opt-in process following the current standards set by the short code policies set by the CWTA One time reply is fine under the ‘inquiry’ exclusion when used to directly respond to a specific question CEMs will require identification and unsubscribe information in each message 145-160 character limit is getting smaller: ‘rply STOP 2 unsub, Corp Name’ Maybe only 100 characters left for your message

Social Media, IM and CASL  Twitter, Facebook, and Instant Messaging accounts are considered electronic accounts and are covered by CASL  Social Consent is controlled by the Social Networks Follow/unfollow – like/unlike features  If you plan on Promoting via Social Media add text to splash pages and account backgrounds regarding CASL identification information and notice of promotional content

Power Up Your Online Marketing Start the process now to review and plan for change in your communication programs  Review your existing practices against this Legislation (or work with a partner to do this)  Rework wording to gather express consent with a clear and easy to understand sentence Begin monitoring the date of data collection  Implement sun-setting programs based on date field Look to update your Preference centers to offer more choice Review the CWTA Short code guide for Mobile initiatives

Advanced Ideas For Marketers Marketers should:  Think about digital marketing permission/privacy on a global perspective.  Establish a baseline policy for interacting with subscribers across all digital technologies.  Optimize communications based on customers expressed preferences, observed behaviours, demographics and customer lifetime value.  Use explicit opt-in methods for capturing contact information. Move away from “shout” marketing...

Anti-Spam in Canada - SummaryCanadian Anti-Spam Legislation or CASL: Prior Consent Prohibits unsolicited commercial electronic messages Prohibit installation of programs without consent No false information Sender or subject lines No harvesting or dictionary attacks More than email:  IM; SMS; social media; voice*

Anti-Spam in Canada - SummaryOther requirements: Unsubscribe:  Without delay, but not longer than 10 business days Proper identification (postal address) Private right of action included Officers of organizations can be held accountable for their organizations messagesExemptions: Family or personal relationship; business inquiry/relationshipEnforcement: Cross border - Can’t hide under HQ location Protection for “honest” mistakes

Thank You!Wally Hill Matthew VernhoutVice President, Public Affairs & Director, Delivery & ISP RelationsCommunications TC MediaCanadian Marketing AssociationTwitter: @cdnmarketing Twitter: @emailkarma Resources:  The Canadian Marketing Association: http://www.the-cma.org  TC Media: http://www.tc.tc  EmailKarma.net: http://emailkarma.net

Appendix

Definitions What is an Existing Business Relationship? A business relationship between sender and recipient arising from any of the following scenarios:  the purchase or lease of a product, goods, or service  the acceptance of a business, investment or gaming opportunity (e.g.within 2 contest) years  a written contract unrelated to a purchase or lease as described above  an inquiry or application related to items 1 or 2 above from thewithin 6 person to whom the message is sentmonths

Definitions What is an Existing Non-Business Relationship? A non-business relationship between sender (registered charity, a political party or organization, or a person who is a candidate for publicly elected office) and recipient arising from any of the following scenarios:  a donation or gift to the senderwithin 2  volunteer work or attendance at a meeting years  membership in a club, association or voluntary organization

Definitions Implied Consent can be used in the following scenarios: 1. Sender has an existing business relationship or an existing non-business relationship with the recipient

Definitions Implied Consent can be used in the following scenarios: 2. Recipient has conspicuously published the electronic address to which the message is sent and:  the publication is not accompanied by a statement that the person does not wish to receive unsolicited commercial electronic messages at the electronic address AND  the message is relevant to the person’s business, role, functions or duties in a business or official capacity

Definitions Implied Consent can be used in the following scenarios: 3. Sender has disclosed the electronic address to which the message is sent and  Did not indicate a wish not to receive unsolicited commercial electronic messages at the electronic address, AND  The message is relevant to the person’s business, role, functions or duties in a business or official capacity

Key concerns with draft regulations Consistency with other laws – especially PIPEDA  Consent requirements, transition provisions Technological neutrality  Prescriptive form requirements, definition of personal relationship, consent “in writing” Implementation period  Adequate for compliance prep, awareness & education Submissions available to Members www.the-cma.org

What is TC Media?Marketing Activation is the method used to bring a brand message to lifethrough a strategic, integrated campaign that leverages the full potential of a wide range of marketing communications tools (print, media,interactive and more) in order to maximize results and provide the greatest return on investment. 34

Advertising & Marketing Law Conference

by Matt Vernhout on Jan 31, 2012

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Advertising & Marketing Law Conference — Presentation Transcript

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