By now you’ve heard the whoops of joy emanating from the email marketing department. Why? Canada’s federal government issued an order in council stopping Canadians from filing civil suits for damages arising from spam. Specifically, the order delays “the Coming into Force date of sections 47 to 51 and 55 of Canada’s Anti-spam Law, which provides for a private right of action, in order to promote legal certainty for numerous stakeholders claiming to experience difficulties in interpreting several provisions of the Act while being exposed to litigation risk.”
Whew! No More CASL?
Not so fast. Although the news headlines certainly gave that impression, the truth is a touch less exciting. CASL is still the law, and everything in it still stands EXCEPT the sections specifically noted in the Order. Canadian businesses must still comply with the rest of the legislation. The order in council does not extend the grandfathering period to obtain provable consent from subscribers acquired prior to CASL’s in force date of July 1, 2014. Those records still expire in just a few weeks time. It’s important to maintain your efforts to cleanse your marketing databases, ensuring that provable consent exists – either implied or expressed.
It’s also still important to have a CASL policy in place, and provide training for your staff about their obligations under the law. Directors and officers are still personally at risk should a breach of the legislation occur, in addition to hefty fines of up to $10 million for each offence.
This Decision is Significant
Although the current order does nothing to soften the harsh conditions Canadian businesses are currently dealing with, it does offer a glimmer of hope for the future. Preventing class action lawsuits from being launched offers significant protection to businesses that are struggling to comply, and immediately removes risks in the tens of millions of dollars. That should allow some business leaders to sleep a little easier.
Also embedded in the order is a promise to review CASL and take action to ensure that Canadian businesses are not burdened with unnecessary red tape and costs to comply. In a press release issued the same day as the order in council, Minister of Innovation, Science and Economic Development Canada clearly states that the rights of Canadian citizens must be balanced with the rights of businesses to have reasonable access to electronic communication.
“Canadians deserve to be protected from spam and other electronic threats so that they can have confidence in digital technology. At the same time, businesses, charities and other non-profit groups should have reasonable ways to communicate electronically with Canadians. We have listened to the concerns of stakeholders and are committed to striking the right balance.”
This statement, combined with the required review of the legislation seems to signal a possibility of saner days ahead. Certainly, it’s clear that the Minister has heard the outcry from small businesses. Thanks in no small part to the lobbying efforts of advocacy groups like the Burnaby Board of Trade, who put forward a formal policy that has been adopted by the BC Chambers of Commerce, and of the CMA who have been actively lobbying for a more balanced approach.
What Should Business Do?
Much like the legalization of marijuana, CASL isn’t going to change overnight. And until it does, the law is the law is the law. Businesses should continue on the path of compliance, doing everything in their power to ensure they have a provable claim to consent for the records in their marketing databases.
The bottom line is that email marketing is a permission-based strategy. As marketers are working harder to send engaging, useful content that people want to receive, they’re being rewarded with stronger results. Ironically, that may be the most positive outcome of this law.