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Background

In its current version, Canada’s Anti-Spam Legislation (CASL) is economically detrimental to the Canadian economy and it limits our government’s vision of keeping “Canada at the leading edge of the digital economy.”

In relation to electronic messages, CASL’s provisions are not only anti-competitive to our Canadian businesses but excessively expensive to comply with.

Stated Goal

Lighten Canada’s Anti-Spam Legislation (CASL) so businesses can easily comply with it while still protecting consumers.

Recommended Reform

#LightenCASL urges our federal government to implement the following revisions to Canada’s Anti-Spam Legislation (CASL):

Problem #1

CASL’s current consent rules are the most difficult in the world to comply with and they, therefore, create an anti-competitive environment for our Canadian businesses. According to CASL, the legislation applies to all businesses (both inside and outside of Canada), however, it’s our Canadian companies who are most prone to private right of action lawsuits (effective as of July 1, 2017) and regulatory administrative monetary penalties (AMP)—at the time of this writing, 100% of all published AMPs have been against Canadian entities.

Solution #1

Change the definition of ‘implied consent’ to ‘one party providing their contact information to another party.’ Implementing this change will not only still allow consumers to unsubscribe at any time, but will also restore much of the competitiveness to our economy as Canadian businesses can collect and market to contacts at a pace closer to that of their foreign counterparts.

Problem #2

The 2-year and 6-month existing business relationship (EBR) purge date rules (i.e., implied consent) are excessively expensive for our Canadian businesses to comply with. For businesses to properly track their database’s moving EBR purge dates, expensive software solutions that link a company’s CRM/ERP to their email marketing software must be developed. Depending on the size of the business, and the complexities of their product lines and business units, these costs could easily grow to five or six figures, money that our Canadian businesses could better spend on hiring, innovation, or capital expansion.

Moreover, according to a study by Google/Shopper Sciences, 7% of consumers shopping for automotive products and 6% of consumers shopping for technology products take over 1 year to make a purchase decision. Furthermore, many product purchases take longer than 2 years before a repurchase occurs (e.g., buying a home). The legislation is, therefore, forcing businesses to remove consumers from lists when the consumer may still have a good relationship with the sender and not wish to be removed from the list.

Solution #2

Eliminate the 2-year and 6-month rules around existing business relationships (i.e., implied consent). By removing the 2-year and 6-month existing business relationship purge dates, businesses’ costs of compliance will be dramatically reduced (as businesses will no longer need to customize software that tracks purge dates that’s tied into their CRM/ERP and email marketing software), liberty will be restored to consumers as some consumers want to stay on e-mail lists, and consumers will still be able to unsubscribe from email lists if they wish to.

Problem #3

The rules around social networks are vague. No where in the legislation does it indicate that any two people connected on a social network have formed a personal relationship or implied consent, and even the Canadian Radio-television and Telecommunications Commission (CRTC) has stated that the act of “liking” on Facebook isn’t enough to form a personal relationship. Rules or opinions like these not only stifle Canada from building a leading-edge digital economy, but are also not intuitive to how consumers and businesses operate in today’s digital-oriented society.

Solution #3

Consider any two people who are voluntarily connected on a social network or instant messaging system (e.g., Skype, Facebook Messenger, Snapchat, etc.) to have formed implied consent. Any CEMs should still contain a mechanism to unsubscribe and most or all popular social networking websites have a system in place that allows users to stop receiving unwanted private messages (i.e., by either blocking or disconnecting from a user). By implementing this change, you will create a more intuitive policy that supports Canada building a progressive digital economy.

Summary

If our federal government implements the above three recommendations, Canadian businesses will be able to easily comply with CASL, Canada’s global economic competitiveness will improve, and consumers will remain protected.