The Marketing Landscape since CASL: One Year Later

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1 The Marketing Landscape since CASL: One Year Later By: Geoff Linton and Matthew Vernhout CASL is a year old this month and the good news is that not much has changed for legitimate emarketers. the old, reliable digital workhorse is alive and working steady. Clickstream metrics have been relatively unaffected and legitimate marketers are still seeing great results from . Meanwhile, the Canadian landscape has been trimmed and the new regulations are generally keeping companies in line. In fact, the amount of spam is down by a third! 1 Looking Back A year ago there was a lot of confusion and anxiety surrounding CASL. The legislation was the focus of many corporate marketing meetings as executives wanted to be certain of compliance. Small and medium sized businesses seemed the most unprepared as many of them were receiving conflicting advice. But the basic principles of CASL were (and are) straightforward. marketing is a permission medium. Marketers need to track their permission level in order to send to recipients. And these recipients must be able to easily and quickly unsubscribe. 1 Cloudmark, Security Threat Report, 2015 Q1

2 Most of the initial confusion with CASL was around permission levels. Businesses understood that once CASL came into effect, marketers sending to Canadians needed to collect consent from new opt-ins and opt-in pages needed to be more explicit and couldn t include pre-checked boxes (seems reasonable to me). Perhaps the biggest area of confusion was implied consent. Basically, marketers sending to a person prior to July 1, 2014 had implied consent and could continue to send them . However, they needed to have historical records and proof that they had previously mailed this person. Unfortunately, the threat of hefty fines prompted many companies to make the hasty decision to send reconfirmation campaigns to their entire base. In many instances, these campaigns were unnecessary and only caused further confusion surrounding past subscribers who did not reconfirm their consent. More detrimental were the campaigns that forced companies into a corner with the CASL is coming, please check the box to confirm your subscription or we won t be able to send you approach. The result in many cases was that only 5% -10% of subscribers checking the box (see sidebar)! Advice about Reconfirmation Campaigns First of all, doing a reengagement campaign was probably unnecessary for two reasons: (1) if you had express consent under PIPEDA, there s no need to reconfirm and (2) if you had implied permission and proof that you were mailing before July 1st, 2014, then you were compliant (though only for 3 years). 2 As mentioned, reconfirmation campaigns typically only get 5-10% response so it s a risky strategy if you don t need to do one. The strategy and message copy need to be carefully planned. The safety first approach of let s reengage everyone on our list was too cautious and risky. The only subscribers that you needed confirmation for were the people you had no data on. There has been some ambiguity around the wording of these reconfirmation s. Some companies that used an informational or courteous style of writing have continued to mail their list, under the premise that they didn t explicitly say they would stop mailing, just that they may. If your company was one of these ambiguous reconfirmation senders, verify everything through your legal teams before you send again. 2 Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23), section 66, acts/e-1.6/page-20.html#doccont

3 The Facts of CASL Since July 1st, 2014, it has been business as usual for most marketers. There s a bit more vigilance surrounding list hygiene (which is a good thing). According to Matt Vernhout, Chief Privacy Officer at Inbox Marketer, The enforcement team from the CRTC has been busy and have received over 310,000 complaints. The government has been true to their word that they are not aggressively looking to penalize legitimate marketers but rather dealing with bigger violators. While marketers were afraid of CASL s fines, the CRTC has only issued a little over 1.1 million in fines for violations like: sending unsolicited communications and complicated unsubscribes. The Competition Bureau, while enforcing false advertising laws, also applied a CASL penalty for advertisements sent via . It is important to note that spam typically originates from a small number of sources, most of it coming from outside Canada (53% comes from the US) and that CASL has reduced spam originating from Canada by 37%. 3 About 16% of is still spam (it is hard to get rid of it all), but the second trend is that there s an overall smaller monthly volume of , even for legitimate mailers. is unchanged at 16% red) Volume of CASL Implemented Le Spam Source: Cloudmark Security Threat Report, 2015 Q1 3 Cloudmark, Security Threat Report, 2015 Q1

4 There are 4 factors why the overall volume of has declined: 1. Smaller, cleaned lists (impact of the reconfirmation campaigns) 2. Lists are growing slower (due to unchecked box requirement; less co-registration) 3. More careful campaign planning (marketers have slightly fewer campaigns) 4. Many US marketers have stopped mailing into Canada From our perspective at Inbox Marketer, the last year has been business as usual. Our clients obtain consent and follow best practices. Canadian deliverability rates remain unchanged. As there still is spam, ISPs continue to block messages, meaning your deliverability teams still need to monitor domains. But since CASL, Canadian open rates increased +1% incremental to over 26%. The Good, the Bad & the Ugly The Good: CASL has been good for marketing in Canada. Sure, there was extra work, but it forced more marketers into the best practices they should have already been doing. Marketers are now more aware of all the that their company is sending. As a result, CASL opened a dialogue between head office and their regions. All employees/groups need to be aligned and compliant (which is positive). Multi-point portals are a better way to manage regional and local marketing. Kim Arsenault, Director of Client Services at Inbox Marketer says, CASL raised the bar for accountability and got the attention of the C-suite. Legitimate marketers should be happy, as there is less inbox clutter and benchmarks are steady. Marketers are starting to breathe and look closer at their programs as they become aware of how enforcement works. The Bad: One minor downside for marketers who are doing customer acquisition is that due to CASL s stringent requirements surrounding third party consent, the list rental market has pretty much dried up. The Ugly: Spammers still exist. Unscrupulous marketers are on their guard and will probably avoid Canada for now but they are waiting. Next Steps and the Future In conclusion, marketers still need to be vigilant. Check your list hygiene and permission tracking to ensure you are compliant. Conduct an annual CASL audit.

5 Looking forward if you deploy to some implied consent recipients, you need to start getting ready for July 1st, This is the first hurdle when the first of the post CASL implieds two year consent begin to expire. The final hurdle, July 1, 2017, the end of the transition period where two things will happen; (1) three year implied consents for records that qualified to remain active under Section 66 will expire and (2) the private right of action will become available. Individual citizens and corporations will have the right to sue companies for CASL violations. Will there be a tsunami of lawsuits? Probably not, but there will be lots of fanfare (and your legal team will want lots of preparation time). If you do your homework, keep proper records and have processes in place to prove due diligence, you should not have much to worry about. Always remember - CASL is meant as a deterrent to bad behaviour, not as a punishment for good marketers. Geoff Linton President, Inbox Marketer Geoff Linton is a co-founder of Inbox Marketer Corp. and a direct marketing expert with more than 25 years of applied experience in both client and agency roles. His experience spans many industrial sectors, including financial services, telecommunications, consumer packaged goods, technology, manufacturing, and entrepreneurial businesses. Geoff has guided clients in digital messaging strategy, and analytics for Inbox Marketer over the last 12 years. Previously Geoff was Associate Director for the Air Miles program where he spearheaded major launches and was actively involved in targeted marketing initiatives and customer/campaign measurement. Geoff holds both a P.Eng and MBA from Queen s University in Canada. Matthew Vernhout Chief Privacy Officer & Manager Matthew Vernhout is the Chief Privacy Officer & Manager, Deliverability at Inbox Marketer Corp. and a Certified International Privacy Professional (Canada) with more than 14 years of experience in marketing. Matthew ensures that Inbox Marketer s clients are compliant with all relevant industry regulations including: CAN-SPAM, PIPEDA, and Canadian Anti- Spam Legislation (CASL). He actively shares his thoughts on industry trends via his own social marketing blog, Karma.net, which was recognized in 2010 as one of Canada s top 40 marketing blogs. Matthew is also involved as director at large of CAUCE and chair of the eec s Advocacy Subcommittee, as well as the co-author of A Complete Guide to e-marketing Under Canada s Anti-Spam Legislation. Matthew graduated from St Clair College in 2002 with a diploma in Computer Science and Information Programming. For more marketing insights, trends, and tips visit inboxmarketer.com (877) info@inboxmarketer.com inboxmarketer.com 2015 Inbox Marketer Corporation