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Spam law a meaty mystery

Even an email asking permission to email may be illegal

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James Bloomfield, sales manager at NRM Telecom & Security Services, said companies are scrambling to resolve confusion over the new anti-spam legislation.

DAVID LIPNOWSKI / WINNIPEG FREE PRESS Enlarge Image

James Bloomfield, sales manager at NRM Telecom & Security Services, said companies are scrambling to resolve confusion over the new anti-spam legislation. Photo Store

THE flurry of emails seeking consent to continue sending you emails is the first sign of new Canadian anti-spam legislation (CASL) that comes into effect July 1.

Although those requests may seem straight forward if not a little unusual at first, the looming enactment of this legislation is already becoming famous for the confusion it’s spreading.

The consensus even from legal privacy experts across the country is CASL is tough to figure out.

People in small businesses are panicking — fines can be as much as $10 million per day for violations — and the direct marketing business is being turned upside down.

"There is a tremendous amount of confusion out there," said James Bloomfield, sales and marketing manager with NRM Telecom & Security Services, a Winnipeg company that sells and installs communications and security networks.

The new federal law is designed to help unclog Canadians’ email inboxes. It requires businesses get written or oral consent before they send emails or other digital messages to consumers.

‘There is a tremendous amount of confusion out there’

Companies must also clearly identify themselves in each message and allow consumers to unsubscribe from digital mailings.

The bottom line is unsolicited sales and marketing emails — or commercial electronic emails (CEMs) — where the target has not already indicated it wants to receive the email will soon be in violation of the legislation.

Lawyers are speaking to packed rooms across the country trying to explain it as the deadline looms. But much uncertainty still prevails.

Brian Bowman, a privacy law specialist at Pitblado (and a Winnipeg mayoral candidate), said there’s nothing easy about how CASL works.

"There are two key features about this legislation," he said. "One is its scope — it impacts virtually every industry and organization in Canada. Second are the issues related to how you obtain consent. Some of the details of the legislation contain obligations that are new to a lot of organizations and many simply have not heard about them yet."

The terms are so sweeping, it has already started to kill an entire segment of the direct marketing business.

Dycom Direct Mail Services, a 31-year-old business in Winnipeg, has been in the email-list brokering business for some time. But that business was shut down last month and the company was forced to lay off staff.

Bob Thiessen, owner of Dycom, said "For all intents and purposes, here in Canada that business will cease." But Thiessen said that doesn’t mean we’re going to stop getting unwanted emails. That’s because only about five per cent of the spam we receive actually originates in Canada. And while the business of brokering Canadian email lists may be over in Canada, Thiessen said there are extensive lists in the U.S. of Canadian businesses and residents.

As well, overseas scammers offering to share lottery winnings or to broker any number of shady dealings will not be affected by the law.

Many firms are now taking steps to get consent, but many more have probably left it too late. (According to Bowman, just sending an email seeking consent to continue sending emails may be a violation of the legislation after July 1.) Bowman said after the deadline, snail mail or phone calls may have to be used to obtain expressed opt-in consent. (There is an array of conditions that may satisfy the "implied consent" provision, which means everyone does not need to actively consent. The CRTC web site details some of those scenarios at www.crtc.gc.ca.) Not only do companies need to acquire consent, that consent needs to be documented and archived.

Bloomfield’s company is currently marketing a phone system that has a recording function that can be programmed to automatically send a recorded consent to receive CEMs to the customer’s file in the company’s customer-relationship management database.

"To me that is really powerful," Bloomfield said. "If anyone ever disputes it, I can send them a recording of their own voice giving me permission."

Michael Geist, a professor at the University of Ottawa and the Canada Research Chair in Internet and E-commerce Law, said he doesn’t think it’s too onerous for businesses to comply with the new rules, especially since concessions were made to get it enacted.

"Just about everyone in the process had to put a little bit of water in their wine; there was certainly a fair amount of compromise," Geist said. "It seems to me they’ve carved out quite a lot of space for correspondence that I think most people feel is legitimate and have also given enough of a phase-in period for most businesses."

On top of all the consternation about what constitutes a CEM and how to adequately secure consent, businesses that have relied on email broadcasts for leads are wondering what they are supposed to do now.

Perhaps in a bit of wishful thinking, Thiessen said it may compel some businesses to return to regular direct mail. Dycom’s main business line has always been direct mail.

Kevin Gordon, a marketing specialist with newly formed Apparent Media Group, said direct mail might prove too costly for some. He said another strategy might be to pay for lasertargeted digital advertising made possible from social media websites such as Google, Facebook and LinkedIn.

martin.cash@freepress.mb.ca

Republished from the Winnipeg Free Press print edition June 6, 2014 B6

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