A Market Researcher’s Perspective on CASL – Canada’s Anti-Spam Legislation

By Lynne Back, itracks VP Finance

Canada’s anti-spam legislation (CASL)[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1] came into force July 1, 2014 however the strong gales were felt in the months preceding. Thousands of businesses sent their desperate but professional pleas to convince the recipient that it was in their best interests to “opt-in” to continue to receive the company’s electronic messages.  Recipients were inundated with these requests that even those that gave careful consideration, may too, in the end, ignored, deleted and felt a sense of relief of possibly not getting any more electronic messages after July 1st.

However much to my surprise and likely yours, the electronic messages kept coming past the July 1st deadline…not asking for express consent, but sending the familiar pre-July 1st business communications still allowed and acting on implied consent.

CASL requires consent which differentiates itself from any other anti-spam legislation in the world. Obtaining express consent is the ultimate goal of any company doing business electronically in Canada, however most will rely on implied consent post July 1st as long as the recipient has an existing business relationship with the sender.  I think this will be an important life line for many organizations that rely on communicating and promoting electronically.

The Craze of Asking for Consent. While I think CASL had numerous pros, from a business perspective it speaks compliance costs.  CASL is here to stay so carping will get us nowhere.  Businesses will put their best foot forth in complying and developing best practices. I feel the biggest and most expensive requirement is consent.  For all the recipients that failed to click “I consent” pre-July 1st, we now have to figure out other opportunities to get the vital express consent.  Perhaps the ultimate goal is consent at the company level which could cover all the people at that location, then only having to track those that unsubscribe?  Perhaps after every sales call, ask permission of the person to send a follow up email asking for express consent for future CEMs.  Perhaps at every tradeshow and in-person visit ask the person giving their business card to sign express consent on the back.  This is all do-able.  Perhaps we should start asking for express consent of all non-Canadian recipients of electronic messages in case any other country follows the Canadian lead and moves from an “unsubscribe” to an “opt-in” process?  Why not be pro-active?

Tracking Consent. The second biggest challenge facing businesses is if their CRM is separate from its email broadcasting tool. CRM companies may be in for a windfall as companies start looking at combining these two to better streamline the express consent and unsubscribe fields businesses are required to forever have on hand.  My feeling is Canadian business may not get the all the express consents it desires and will continue to rely on implied consent by cross matching those businesses/recipients that have done business with them in the last 2 years or have ask for a proposal in the last 6 months before sending out any CEM.

The Business of Market Research. As part of a SME Canadian organization whose business is market research, we struggled with CASL, first in its interpretation, then differentiating between sales and marketing efforts verses the act of performing market research, developing internal policies and procedures, determining database tracking mechanisms and employee education. The sales and marketing efforts of market research companies must comply with CASL…end of story.  Yet market research itself is not considered a commercial activity therefore CASL does not apply.  While there is no exception in CASL for market research, the government has confirmed that they do not consider internet market research to be a commercial activity. But to complicate, if the recipient has the opportunity to win a “sweepstake or draw” as a financial award, this is considered a “gaming opportunity” which CASL explicitly states is a commercial activity thus CASL applies.

Monetary Incentive. When non-gaming monetary incentives are offered…we find ourselves in the grey zone. From a common sense standpoint, it seems strange that offering a person money to participate in research would be considered selling to them.  With no precedential case law and the first private right to take action on non-compliant CASL breakers July 1, 2017, are we are left with no choice but to take a conservative approach to avoid the future possible and significant penalty of up to ten million dollars?  It is likely in our best interests to comply with CASL in any internet market research invite we send due to the vague rules, incomplete exceptions and the fact we are at the fancy of Canadian Radio- television and Telecommunications Commission (CRTC). CRTC has not given a clear answer on how they would interpret a financial incentive but they have apparently flagged it as a potential commercial activity, thus our hand is forced to ensure the consent and content requirements of CASL are met.  Most sample and panel companies have complied with the standards of double opt-in…it’s the customer supplied lists that may cause further investigation and aggravation.   The content requirement…the name of the company sending the message, the name of the company on whose behalf the message is being sent, contact information of same and an unsubscribe mechanism need also be included. For those that unsubscribe, the sample source(s) for the research study need to be notified to take them off of the list.  This gives rise to the challenge of managing complex projects with multiple sources of sample, managing privacy of personally identifiable information (PII), and encrypting PII during the process of timely notifying others of opt-outs.     The reality is that a significant amount of market research is incentivized.  Ideally in the future, there will be clarification indicating that incentivized market research is not a commercial activity.  In the meantime, we will find a way.  Fortunately the market research industry has many fine folk lobbying and educating the government, so it will only be a matter of time until we get a more definitive statement from them.

Better Results? CASL has forced businesses to look inward and see if they are targeting the right people. While our electronic mailing lists will decrease in size, was it time to drop some of those businesses and contacts within databases that hadn’t reciprocated any interest to our messages in several years?  We will grab this opportunity to increase our lead conversion rate and customer retention rates by weeding out those that will likely never add value or contribute to our growth.  It’s much more rewarding and we will gain that much more momentum by emailing 1,000 people that will open up and truly be interested in what we have to say, verses 5,000 that will just hit delete.  There is also a huge benefit for CASL compliant organizations as there will be less in their targeted recipient’s inbox thus less competition for its email to be read.  In the end, I know we will see greater achievement of our company metrics, building of our customer base and growth of revenue and not greater cost and annoyance of being compliant that we might currently feel.  Perhaps with less spam, our market research response rates will improve resulting in better market research data being available faster.

[1] Canada Anti-Spam Legislation. www.fightspam.gc.ca 

Lynne Back (CA, BSc.) worked in public accounting providing audit and compliance services with Deloitte and Touche for 6 years prior to joining itracks.  During the past 14 years at itracks, she has served as a Controller, VP of Finance, Privacy Officer and now a member of itracks’ Senior Leadership team.  Lynne brings valuable insights to the team with her experience with financial reporting, data management, audit, systems and controls, privacy requirements and regulatory compliance.


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