The frenzy to meet the government’s anti-spam law that went into effect on July 1 need not have happened, says one industry expert, and those who did nothing may have actually gained an edge.
“That is at the crux of the issue – express versus implied consent,” says Martin Millican, the president of
Envoke.com. “I did my very best to convince all of our clients not to follow the advice of certain lawyers, that you’ve got to send out a message that says ‘click here or else we can’t talk to you anymore.’”
The Canadian Anti-Spam Legislation (CASL) requires that businesses get written or oral consent before they send emails or other digital messages to consumers. According to the Canadian Radio-television and Telecommunications Commission (CRTC), companies must also clearly identify themselves in each message and allow consumers to unsubscribe from digital mailings.
Those companies violating the law could face financial penalties of up to $10-million per violation, while individuals could be fined up to $1-million per infraction.
But that shouldn’t frighten brokers who have email contact lists from clients, as there is a grace period of three years to slowly move them from their current status of ‘implied consent’ to that of ‘express consent.’
“First of all, don’t panic. I’m not a lawyer, and I’m not giving anybody legal advice,” Millican told
Insurance Business, “but from a practical standpoint, if you’re a responsible email marketer, and you’ve been entering people into your database – or they have been entering it themselves – then the chances are that you can email most or all of your list as implied consent.”
Those who did nothing to their email databases are actually ahead of the game, says Millican. (continued.)
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“By complying with the law, you lose 90 per cent of your business,” he says, citing data that shows those companies that sought out express consent prior to the July 1 deadline were seeing an 8.6 per cent success rate in confirmations from email recipients. “From a practical standpoint, is the CRTC going to come down on all of these little companies? No. From a business risk standpoint, it seems a greater risk to stop sending these messages.
“Anybody who hasn’t done anything, has really cleared the first hurdle of this law.”
However, by July 1 2017, your email lists must be entirely made up of express consent.
Millican says that brokers existing email lists should be safe from this law, “unless you’ve been importing random lists. If you’ve been responsible, you can continue sending as implied consent.”
Brokers have been contacting Millican, whose company’s permission-based email program can be tailored for individual brokerages to elicit express consent, asking him if they are safe to continue emailing. Although he usually says yes, he does offer this piece of advice as well.
“The one caveat I have on a past database: I don’t know your database,” he says. “If you haven’t been spamming people, you are probably okay. But if you don’t know how those names got into a database, then you need to get express consent now.”
Millican’s Envoke program consists of forms that have check boxes, and pop up screens for new visitors of a website, to ensure there is express consent
“With CASL, it needs to be a click or a check. It must be actively selected,” he says.
Although Millican does fundamentally agree with CASL, describing it as good business practice that everyone should be already using, he does believe that its introduction by the government was clumsy.
“I think the real challenge is the way they treated existing databases. It was confusing,” he says. “You get different messages from lawyers; they didn’t really know what they are supposed to do. They could have made it so much simpler.”
