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1990, and he has chaired the California Bar Association‟s Antitrust Section. He served as the
FTC‟s Bureau of Consumer Protection director from 1973 to 1975, and in 1989 was a member
of the Special Committee to Study the Role of the FTC.
Nationally regarded for his antitrust and trade regulation law expertise and as a Fellow of the
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honored as Antitrust Lawyer of the Year by the California State Bar Antitrust Section. He obtained his LLB from
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J. Thomas Rosch was sworn in as a Commissioner of the Federal Trade Commission January
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Rosch joined the FTC from the San Francisco office of Latham & Watkins, where he was the
former managing partner and most recently a partner, working in the firm‟s antitrust and trade
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of the Special Committee to Study the Role of the FTC.
Nationally regarded for his antitrust and trade regulation law expertise and as a Fellow of the
American College of Trial Lawyers for more than 20 years, he has been lead counsel in more than 100 federal
and state court antitrust cases and has more than 40 years experience before the Bar. In 2003, Rosch was
honored as Antitrust Lawyer of the Year by the California State Bar Antitrust Section. He obtained his LLB from
Harvard University in 1965 and was a Knox Fellow at Cambridge in 1962.
Rosch is married with two children and four grandchildren.
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1. Canada’s Anti-Spam Law
January 26, 2012
Wally Hill
Vice-President
Public Affairs and Communications
Canadian Marketing Association
Matt Vernhout
Director, Delivery & ISP Relations
TC Media
2. 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 Email
Examining 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% of
commercial emails blocked.
- Return Path B2B email delivery report - Sept 2011
3. 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
4. Recent History
Part of Canada’s Digital Economy Strategy
Election commitment of current government
Canada introduces legislation April 2009
5. The CASL Journey
2004-2005 2009 MAY 2010 DEC 2010 Q2 2011
Q2/3 2012
Federal 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
6. 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.
7. 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
8. 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 CEM
CEMs sent between individuals with personal or family relationships (as
defined) are exempt from these requirements
9. CEM Requirements
Consent 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
10. CEM Requirements
Consent 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
11. CEM Requirements
Message 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
12. 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
13. 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
14. 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
15. CASL vs. CAN-SPAM: Key
Differences
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
16. Types Of Messages
Commercial
Offers to purchase, sell, barter or
lease a product, goods, a service,
land, promotes a person
Transactional
Provides a quote or estimate,
completes or confirms a transaction,
warranty, product recall or safety or
security information
Primary Purpose
(CAN-SPAM only)
80/20 rule applied to transactional
content with commercial up sell or
add-on
17. Identification Recommendations
CASL requires senders to:
Identify themselves
Indicate on whose behalf the message is sent
Provide up-to-date contact information
18. 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
19. 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
20. 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
21. 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
22. 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
23. 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...
24. Anti-Spam in Canada - Summary
Canadian 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*
25. Anti-Spam in Canada - Summary
Other 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 messages
Exemptions:
Family or personal relationship; business
inquiry/relationship
Enforcement:
Cross border - Can’t hide under HQ location
Protection for “honest” mistakes
26. Thank You!
Wally Hill Matthew Vernhout
Vice President, Public Affairs & Director, Delivery & ISP Relations
Communications
TC Media
Canadian Marketing Association
Twitter: @cdnmarketing Twitter: @emailkarma
Resources:
The Canadian Marketing Association: http://www.the-cma.org
TC Media: http://www.tc.tc
EmailKarma.net: http://emailkarma.net
28. 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 the
within 6 person to whom the message is sent
months
29. 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 sender
within 2 volunteer work or attendance at a meeting
years membership in a club, association or voluntary organization
30. 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
31. 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
32. 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
33. 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
34. What is TC Media?
Marketing Activation is the method used to bring a brand message to life
through 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