CASL is more privacy law than anti-spam law

Michael Geist, a law professor in Canada, writes about the new CASL law, why it’s necessary and why it’s more about privacy and consumer protection than just about spam.

The law has at least three goals: provide Canada with tough anti-spam rules, require software companies to better inform consumers about their programs before installation, and update Canadian privacy standards by re-allocating who bears the cost for the use of personal information in the digital environment.

There are a lot of marketers out there that are really in a tizzy about CASL and about actually having to ask for and receive permission before sending mail to people. These are the same marketers who will tell you that they only do permission email. I’ve not quite gotten past the cognitive dissonance. They already do permission email, now they just actually have to keep some accurate records and have an audit trail.
The more cynical side of me says that the problem is that these senders who are stomping around ranting about how awful CASL is and how unfair are just pouty because they can no longer pretend they have permission. They actually have to have permission. They can’t bury an opt-in somewhere in a privacy policy, they have to have a real opt-in. They can’t tell a complainant “well, you opted in at some point, we just don’t know when” they have to be able to demonstrate the opt-in. They can’t just collect an email address and assume that address is a viable target forever, they have to either have a demonstrable relationship with the recipient or stop mailing the address after a few years.
Whenever I read about how awful CASL is, the underlying issue seems to me to be that marketers don’t like being told to stop taking permission from recipients. The marketers don’t like begin told they have to respect consumers. Not only that, they really hate that if they violate the law they may be held accountable for that.
Canada was one of the last western, industrialized nations to adopt an anti-spam law. I do not think it’s coincidence that CASL is extremely consumer friendly. Canada saw what happened with other laws and wrote a law that was a lot harder for marketers to ignore.

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One of the things that prompted yesterday’s post was watching a group of marketers discuss how to get subscribers to give them their “real” or “high value” email addresses. Addresses at free email providers are seen as less valuable than addresses at a place of employment or at a cable company or dialup ISP. The discussion centered around how to incentivize recipients to give up their “actual” email addresses.
The underlying belief is that users don’t use free mail accounts for their important mail, and if a recipient gives a marketer a free mail account as a signup that they will not be reading the mail regularly. Better to get an email address that the recipient checks frequently so there is a better chance at a conversion and sale.
Perfectly acceptable marketing goals, but makes a number of assumptions that I am not sure are valid.
Assumption 1: An email address at a freemail provider is less important to the recipient than a different email address.
Wrong! A sender has no idea if a recipient uses a freemail account exclusively or has another real email address. Many people these days use gmail as their primary account and they don’t check the email account associated with their dialup or broadband provider. For instance I have an email account at AT&T associated with our UVerse TV and internet service, but have never logged in to do anything with email.
Assumption 2: A non freemail address gives better response rates.
Really? I haven’t seen data one way or another saying that different classes of email addresses give better responses. It may be true, but it may not.  Some users do have separate accounts for friends and family and marketing mail. In that case, are senders better off in the marketing account? Or in the F&F account where the user may hit the “this is spam” button just because that mail is in the wrong place?
Assumption 3: I’ve been invited in, I get free run of the place
Wrong! Just because you’ve been invited onto the front porch for a glass of lemonade, doesn’t mean you’re welcome in the bedroom. Marketing is all about pushing limits and getting more and more from recipients, but in email marketing the recipients get to hit the “this is spam” filter and stop delivery of that email. Limit pushing in email may result in all out blocks and zero inbox delivery, rather than causing a massive increase in sales.
Assumption 4: Incentivized permission is the same as real permission
Wrong! Just because a subscriber hits the “give me a coupon” or “enter me in the drawing” link does not mean they want mail from that sender. What it really means is the recipient wants a chance to win something or get $5 off their next purchase. Just because they closed the loop to get an incentive does not mean the sender gets a free pass through spam filters or is exempt from having their mail marked as spam.
The marketing relationship between sender and recipient is a lot more balanced than any other direct marketing relationship. The sender can’t ignore the recipients’ preferences over the long term without suffering delivery problems. Many email marketers, particularly those that didn’t start in email, forget that the relationship is different and marketers have to respect the recipient.

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Role accounts, ESPs and commercial email

There was a discussion today on a marketing list about role accounts and marketing lists. Some ESPs block mail to role accounts, and the discussion was about why and if this is a good practice. In order to answer that question, we really need to understand role accounts a little more.

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The DMA: Email marketing or spam?

A few weeks ago, I signed up for a webinar from the DMA. As is my normal process I used a tagged address. I don’t remember any notification that I would be signing up for mail, and I generally do look for those kinds of things. I also know a lot of webinars are used to drive sales processes and I prefer not to waste sales time if I’m not actually looking to purchase.
In recent weeks I have gotten an ongoing stream of marketing messages from the DMA. I’ve tried to opt-out, but the DMA don’t actually want me to opt-out. Each marketing message is a different type of message from a different list. Each list must be opted out of individually.
First it was Conferences, then it was Education, then it was Awards, then Events. I’m trying to figure out what’s next and how many more times the DMA is going to get to spam me before I just turn that address into a spam trap.
And before you tell me that I can’t make an address a spam trap, think about that a little bit. I never opted this mail in to receive anything but the webinar confirmation. I’ve dutifully opted out each and every time the DMA has mailed me. I’ve even tried to opt-out of all mail. Unfortunately, the DMA has placed the “opt-out of all mail” behind a registration wall, one I cannot get to as I do not have (or want) a DMA account.
DMASignOn
The DMA is sending me mail I did not request and do not want. They have made it impossible for me to determine how much mail I will get. They have made it difficult for me to opt-out of all their mail.
This is an example of bad email marketing. I’m sure that the DMA will tell me this is all permission based email. I disagree. This is an example of the DMA taking permission. This is not an example of a sender asking for permission. I didn’t give permission to be added to all these DMA lists, and I have no way to actually revoke the permission that they took from me.
I signed up for a second webinar with this email address, one related to CASL. The irony is that the DMA’s behavior here is a violation of a number of points of CASL. First, there was no clear opt-in notice on the website. Second, CASL requires parity between opt-in and opt-out. If I opt-in once then I should be able to opt-out once. CASL puts an end to this opt-in once, opt-out dozens of times process.
I wish I could say I was disappointed in the DMA. But I’m barely surprised. Their track record is poor and they have typically fallen on the side of “I have consent until you force me to acknowledge that I don’t.” In this case, the DMA is demonstrating that quite clearly. They will keep spamming and spamming and spamming. I have no doubt were I to actually register an account, they would continue to spam me with “account notifications” that I was unable to opt-out of because they are transactional, membership messages.

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