An opt-in lesson from Porter Airlines

PorterAirlines_200x200_063015A recent settlement between Porter Airlines Inc. and the Canadian Radio-television and Telecommunications Commission (CRTC) has brought up the discussion about how important it is to include a working ‘unsubscribe’ in marketing messages as well as be able to prove opt-in. The CAN-SPAM Act of 2003 requires that you tell recipients how to opt-out of receiving future email in a clear and conspicuous way. You must also honor the request promptly. Canada’s Anti-Spam Law (CASL) has required the same and has taken it one step further in that you must be able to provide proof of the actual opt-in.

Porter allegedly sent emails that did not contain an unsubscribe mechanism. In other instances, the mechanism was not clearly or prominently set out. They also did not honor the requests within 10 business days. In some instances, Porter was unable to provide proof of obtaining consent for the email addressed that received its commercial emails.

Porter cooperated with the investigation and immediately took action to correct the issue, but they still agreed to pay $150,000 for the alleged violations.

Unlike in the US, Canadians are encouraged to report spam to the Spam Reporting Centre. This ensures the CRTC has enough information to conduct their investigations.

This brings to mind whether senders in the US must comply with the more stringent requirements of CASL, or is following CAN-SPAM enough? The simple answer is YES, American senders must comply with CASL. As a best practice, senders should always follow the more stringent of the two unless they are 100% sure they are not sending ANY communications across the border. The problem is that it’s impossible to know where a given recipient is located. With Global ISPs such as Gmail, Yahoo, Outlook, etc., you cannot be 100% certain that you are not sending to a Canadian.

Given that Canadians are encouraged to report spam to their government, no sender is safe from investigation — as Porter Airlines found out. Even if you participate in the CRTC investigation but are found to be lacking in the requirements, you may very well find yourself with additional costs and lose those subscribers that don’t meet the criteria.

CASL’s three requirements you must follow in order to send commercial email are the following:

  • Consent – be able to provide express or implied consent
  • Identification – clearly identify yourself or the organization sending the message
  • Unsubscribe – must include a working unsubscribe mechanism on every commercial message sent

For more information on how you can comply with CASL you can go to WWW.CRTC.GC.CA/ANTISPAM.

For more information on CAN-SPAM you can go to https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business

For more information on the Porter Airlines Settlement go to http://news.gc.ca/web/article-en.do?nid=993469

Message Systems clients are among the highest volume senders in the world. They are also typically very aware of their customer engagement and manage their sending practices carefully. They are MAAWG and OTA members, follow CAN-SPAM guidelines and are typically the progressive leaders in the email delivery space. That is exactly why this article will be of interest to them and to anyone interested in good delivery and engagement practices.

On July 1st 2014 the Canadian Anti Spam Legislation act (CASL) will come into full effect, so you should be aware of how it may impact your business. The launch of CASL ushers in a new era of government enforcement to protect a citizen’s mailbox. This is not just a set of rules and guidelines; it is an enforceable law.

If you are not aware of the CASL project, here is a little light reading for you.

The legislation has been in the works for several years and is finally now being put in force. Now Canadian citizens can take strong legal action against any one of the people or companies that send Unsolicited Commercial Email (UCE) AKA SPAM. This is real and the Canadian government is very serious about protecting Canadian mailboxes.

Even more important, this does not just affect people *IN* Canada, it applies to all Canadian citizens regardless of where their email inbox lives. That means that if you have been ignoring it because it is a “Canadian” law, you should think again. Sending UCE to any Canadian citizen, regardless of where their mailbox lives, needs to be addressed. Of course, sending one piece of UCE is really not criminal as long as you follow the accepted CAN-SPAM guidelines as well. When a user unsubscribes you need to unsubscribe them. Continuing to send mail to a Canadian who has specifically unsubscribed is when you run into some hot water – and it is very hot water. CASL has real penalties that hurt where it counts.

“The maximum amount of [cash penalty], per violation, for an individual is $1 million, and for a business, it is $10 million.”– CASL FAQ

Canadians like me have been inundated with mail in the past week by senders wanting to confirm approval for mail. Any of the mailing lists Canadians subscribe to have been sending a small reminder to confirm their request for email. Any responsible sender who knows you are Canadian, has been reaching out to make sure you are ok with their newsletters and marketing messages. No one wants to get caught on the wrong end of this big stick.

Even my power company is asking for permission to send:

 

WE REQUIRE YOUR CONSENT

We value our relationship with you, and in anticipation of the federal anti-spam legislation, that we will be required to comply with, we kindly ask for your consent to continue to provide relevant information including: publications, announcements, invitations, promotional messages about our products and services, and other messages, which will be collectively referred to as Communications.

Be assured, we will only send you relevant Communications which we believe you will be interested in receiving. If we do not receive your consent before the new anti-spam laws come into effect July 1, 2014, our ability to continue sending you Communications may be restricted.

Please click here to provide your consent

Or copy and paste the URL below into your Internet browser:

https://[redacted]

THANK YOU FOR BEING A VALUED CUSTOMER

 

This is the first time in history that citizens have had the power to directly and financially impact an offending SPAM sender. While CAN-SPAM allowed for some financial fines, they are hardly punitive. Fines in Australia and Europe are tougher, but still not nearly what Canada is talking about. If you skipped over that link above to the CASL website, you may want to go back and take a look as there are good resources for individuals and business about the act.

The history behind CASL goes back several years and really owes some lineage to the CAN-SPAM project enacted in the US in 2003. While the rules have good intention, and all responsible senders do their best to follow them, active spam senders are aware of how difficult it is to actually enforce them and penalize the offenders. CAN-SPAM is effectively a list of standards of good practice as opposed to an enforceable law. The good news is that the responsible senders who follow CAN-SPAM make it very easy to join and remove yourself from a mailing list. CAN-SPAM was the first kick at controlling SPAM and UCE and has been effective with legitimate senders, but has been relatively “toothless” on actual illegal senders. Relatively few known “spammers” have be affected by any real penalties or jail time.

CASL is an actual law that is enforceable, and that should have known spammers thinking twice about sending Canadians any unsolicited mail. It should also have good senders  carefully reviewing their databases and updating their practices. That double opt-in is now more important than ever. Ignoring an unsubscribe request 5 times could result in a fine of up to $50 Million CAD. Don’t be that guy.

It will be interesting to watch this play out.