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What marketers need to know now about Canada's proposed anti-spam legislation

August 2009 By Chris Carder

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While Canada has introduced some of North America’s most stringent privacy legislation, the absence of a law equivalent to CAN-SPAM has led marketers to view Canada as a virtual wild west—an untamed territory where any e-mail marketing practice is acceptable. But a new anti-spam bill is about to change e-commerce for everyone marketing to Canadians. The Electronic Commerce Protection Act (ECPA), also known as Bill C-27, is expected to become law in late 2009 with implementation to follow in 2010. If you are going to tap into this market of net-savvy consumers—more than 85 percent of Canadians are on the Internet—you need to take action now.

Overview of the Bill
The ECPA applies to any commercial message routed through a Canadian computer—a “commercial message” is one that’s content or hyperlinks include offers to sell, barter or lease goods and products, or promote a person who offers to sell things. Under the proposed law, marketers will need to be better prepared and actively adopt industry best practices—practices that, legislation aside, make for more effective e-mail marketing and higher response rates.

Following are the key changes resulting from the ECPA, how they differ from CAN-SPAM and steps U.S. marketers can take to comply with the anticipated Canadian regulations.

You need permission to e-mail prospects. This is the most significant difference between the Canadian bill and U.S. legislation. In the U.S., CAN-SPAM allows for marketing to anyone other than recipients who have unsubscribed from or opted out of an e-mail list. When marketing to Canadians, marketers will need either explicit (opt-in) or implied consent—“implied” meaning there is either:

• a business relationship—the recipient has purchased or leased a product, good or service from you, or has bartered or entered into a contract with you; or
• a nonbusiness relationship—the recipient has donated to, volunteered for or become a member of your organization.

You can e-mail anyone who has provided you with explicit consent, and if it’s implicit, you can send e-mail only for a period of 18 months after obtaining that consent. It’s advisable to use that 18-month timeline to make the consent explicit.

Your unsubscribe link must be active for 60 days, and you must honor requests to unsubscribe within 10 days (not “business days”) of receipt. CAN-SPAM requires unsubscribe mechanisms to operate for 30 days following e-mail transmission. The ECPA will double that timeline. In both countries, respective legislation requires marketers maintain clear and conspicuous unsubscribe procedures. In addition, while CAN-SPAM specifies that unsubscribe requests be fulfilled within 10 business days of receiving them, the Canadian law will require fulfillment within 10 calendar days.

Individuals have the right to sue. This is another significant legal differentiator in Canada. While CAN-SPAM allows the federal government and Internet service providers to take legal action against e-mail violators—with fines reaching US$250 per e-mail message to a maximum of US$2 million—the ECPA will enable individuals to sue as well, for up to CDN$200 per message to a maximum of CDN$1 million. Marketers also should be aware that the Canadian federal government may litigate as well; the penalty ceilings will be CDN$10 million for an organization and CDN$1 million for an individual.

The legislation will apply to all electronic media. The ECPA will define spam more broadly than CAN-SPAM, including in its provisions any commercial electronic message sent from, routed through or accessed in Canada. That includes messages delivered via short message service, multimedia message service, instant messaging and social media networks. The ECPA therefore will make it illegal to send spam to cell phones, a regulation now also being considered in the U.S.

What Should E-mail Marketers Do?
The following are steps to take to protect your ability to e-mail Canadian citizens after the ECPA is passed and enacted:

Leverage your database, and refine your targets. Make use of your most valuable asset—customer information—by drawing from data around expressed preferences, observed behaviors, demographics and customer lifetime value. Use it to segment your subscribers, customize your messaging and make your campaigns more relevant.

Be explicit. Use a clear opt-in method that states specifically why you are obtaining their consent for e-mail contact. You might even go further with a confirmed opt-in to ensure willing receipt.

Maintain a clean database. Under the ECPA, marketers must regularly remove bounceback e-mail addresses. If you’re using rented or purchased lists, ensure prospects are qualified—a task that may be better left to an e-mail marketing provider, especially one that not merely ensures legislative compliance but can work with you to optimize your e-mail capabilities as a means to strengthen customer relationships.

Ensure basic compliance of e-mail content. Make certain that every message you send contains: the identity of the sender—this includes identifying the entity sending e-mail on another party’s behalf; your company name; and your company’s contact information.

Optimize your methods, and increase your marketing integrity. Increase the likelihood of e-mail delivery by ensuring the domain naming system and the Internet protocols match the corporate brand sending the e-mail. Test your e-mail—its HTML coding, potential spam words, subject line effectiveness, use of text on graphics and spelling mistakes—before deployment. Include a postal address rather than e-mail address or online form as a means of customer contact. Finally, qualify your customers: Regularly verify constant-contact e-mail addresses, and keep your e-mail lists current.

Engage e-mail recipients, and follow up on their responses. Use preference centers that allow subscribers to choose e-mail timing and frequency, as well as to unsubscribe from one publication or service rather than all. For unsubscribing, include both an e-mail address and Web page; if customers unsubscribe, ask them why, and then route their replies to a customer service contact who can use their responses to further target your overall e-mail efforts. This also is an area where an e-mail marketing provider can add value, helping you maximize the effectiveness of your messaging as well as the medium itself through the use of online contests and offline campaigns.

Change for the Good of All Parties
The current version of the ECPA calls for many U.S. marketers to change some of their e-mail marketing processes, and its introduction in Canada is right in line with the steps many countries now are taking to bring the exponential explosion of unsolicited e-mail under control. Internet security provider Symantec reported in April that the volume of spam worldwide increased 192 percent in 2008 alone, from 119.6 billion to 349.6 billion e-mails. This type of e-mail messaging does a great disservice to legitimate e-mail marketers, and it’s in everyone’s best interest to see proposed laws like the ECPA enacted. E-mail is recognized as one of the most powerful communication and relationship-building tools available; the ECPA is another step toward keeping it that way.

Chris Carder is president of Toronto-based e-mail marketing services provider ThinData, a Transcontinental company. He can be reached at (416) 361-3522.

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