Canadian Anti-Spam Act Survey Bill C-28. May 2012

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1 Canadian Anti-Spam Act Survey Bill C-28 May 2012

2 Executive Summary On December 22, 2010 the Canadian House of Commons passed Bill C-28, which aims to regulate unsolicited electronic commercial messages, commonly called spam. When in force, this act will require Canadian individuals and companies, as well as foreign individuals and companies sending commercial electronic messages to Canada to obtain prior consent from recipients before sending them commercial electronic messages. Even those who are outside of Canada will be susceptible to fines stemming from this law. As a result, once this law is enacted, existing mass mailing lists will need to be purged of all contacts for which the company is unable to prove consent or an exception. 2

3 Key Survey Findings and Themes Survey respondents were largely unaware of the Canadian Anti-Spam Act and its effects. As predicted, there was a significant lack of awareness amongst respondents, with nearly 60% unaware of the new law. The unawareness was most likely due to the lack of mainstream media coverage that this law has received, as well as the fact that is not yet in effect. 3 3

4 Key Survey Findings and Themes Even among those who did know about the new law, respondents were significantly unaware of the potential penalties, regardless of where a company is based. Of the respondents who were aware of the new law, nearly 1 in 4 (23.6%) did not know about the potential fine. Only 27% of respondents knew that a company that was compliant with the U.S. Do Not Call legislation was not automatically compliant with the Anti-Spam Act. If nothing is done, nearly 3 in 4 companies would be immediately at risk. 4

5 Key Survey Findings and Themes Respondents aware of the Canadian Anti-Spam Act indicated that it will have a definitive impact on business planning. 3 in 4 respondents expect that the new act will impact external marketing. Of respondents who purchase lists, 89% said the act would impact how they purchase lists and, for example, insist on their vendors being compliant. Of those with knowledge of their company s long term risk management strategy, 88% will factor in the Canadian Anti- Spam Act. 5

6 Yes No 41.3% 57.6% Have you heard of this Canadian law, expected come into force by early 2012 the latest? Nearly 60% of respondents were unaware of the new law. Lack of awareness likely stemmed from the fact that the law is not yet in effect, paired with limited mainstream media coverage in the U.S. 6

7 Yes No 31.5% 68.5% Do you know that by sending unsolicited to Canada your company could be subject up to a $10 million fine? Nearly 70% of respondents did not know of the potential fine. Of respondents that were aware of the new law, nearly 1 in 4 (23.6%) did not know about the potential fine. 7

8 Yes No 41.3% 58.7% Are you aware that your company could be subject to class action lawsuits if you do not comply with this new law? More than half of respondents were unaware of the potential for class action lawsuits due to non-compliance with the Canadian Anti-Spam Act. Those who had heard of the new law were aware of class action litigation risks. 8

9 50% 45% 40% 35% 30% 25% 20% 15% 10% 5% 0% Very Somewhat Slightly Not at All Do you think a company is in compliance with Bill C-28 if it is in compliance with the U.S. CAN-SPAM Act? A company is not in compliance with Bill C-28 if it is in compliance with the U.S. CAN-SPAM Act, and only 27% of respondents were aware of this fact. If nothing is done to comply with the Canadian Anti-Spam Act, nearly 3 in 4 companies would be immediately at risk. 9

10 45% 40% 35% 30% 25% 20% 15% 10% 5% 0% No longer distribute e- Newsletters Mail newsletters until we can comply No change in the way we communicate with clients and potential clients Other (please specify) Which of the following changes do you expect to make to your company s communication with clients and prospective clients to accommodate the Canadian Anti-Spam Act? Please select all answers that apply. Nearly 60% of respondents expected a change in their company s communication to clients and customers. In open-ended answers, several respondents were confused about marketing in Canada, were unclear about next steps, or were not sure how it will be handled Respondents demonstrated a need for education on how to conduct marketing in compliance with the Canadian Anti-Spam Act. 10

11 35% 30% 25% 20% 15% 10% 5% 0% Extremely significantly Very significantly Fairly significantly Slightly significantly Not at all significantly / Does not apply To what extent will the Canadian Anti-Spam Act prevent your company from communicating with clients and prospective clients based in Canada? 3/4ths of respondents expect that the new act will impact communications with clients and prospective clients. 11

12 25% 20% 15% 10% 5% 0% 0-25% 26-50% 51-75% % Don't know What percentage of your marketing is electronic-based? About one quarter of respondents conducts up to 50% of marketing via as part of their external marketing mix. 12

13 40% 35% 30% 25% 20% 15% 10% 5% 0% Yes No No, because I already rely heavily on social media channels Don't know As a result of this or other anti-spam legislation, are you planning to increase your use of social media channels to market to your customers? Up to 40% or respondents were unsure of how much their use of social media channels will increase in relation to marketing due to anti-spam legislation. This uncertainty could be related to the respondents lack of clarity on the impact of the Canadian Anti-Spam Act. 13

14 Yes No 19.6% 80.4% Do you purchase lists? 14

15 Yes No 11.1% 88.9% Will the Canadian Anti-Spam Act affect how you purchase lists for marketing? Note: this question was only answered by those who said Yes to purchasing lists. Of respondents who purchase lists, 89% said the act would affect how they purchase lists. 15

16 Yes No 94.4% 5.6% Will you insist your vendors be compliant by requiring that they sign an agreement or otherwise insuring that they have received consent? Note: this question was only answered by those who said Yes to purchasing lists. Of respondents who purchase lists, 94% will insist on compliance from vendors. The new act will have dramatic implication for vendors. 16

17 60% 50% 40% 30% 20% 10% 0% Yes No Don't know Do you anticipate that the US anti-spam legislation will be modified to introduce a prior consent requirement in the next months? 1 in 4 respondents expect a change to US legislation to introduce a prior consent requirement in the next months. 17

18 45% 40% 35% 30% 25% 20% 15% 10% 5% 0% Yes No Not applicable / Not responsible for long-term risk management Don't know Will you take the Canadian Anti-Spam Act into account in your long term risk management strategy? Of those with knowledge of their company s long term risk management strategy, 88% will factor in the Canadian Anti-Spam Act. 18

19 70% 60% 50% 40% 30% 20% 10% 0% Yes No Don't know Not applicable / Company exempt Is your company compliant with the U.S. Do Not Call legislation? Even though nearly 60% of respondents were unaware of the new Canadian law, almost 70% of respondents identified as being compliant with the U.S. Do Not Call legislation. 19

20 60% 50% 40% 30% 20% 10% 0% Yes No Don't know Not applicable / Not responsible for company's business insurance Do you plan to change your business insurance to cover the new liability that the Canadian Anti-Spam Act presents? A majority of respondents are not sure if they will change their business insurance to cover the liability resulting from the Canadian Anti-Spam Act. 20

21 Yes No 50.0% 50.0% Are you aware that even if you don t have assets in Canada, judgments may still be enforced? Respondents were split down the middle, 50% aware and 50% unaware, with regard to the fact that if they don t have assets in Canada, judgments may still be enforced related to violation of the Canadian Anti-Spam Act. 21

22 Methodology In December 2011, Fasken Martineau distributed a survey to a group of marketing executives at publicly traded or highly regulated companies. The survey was completed by 92 respondents. Due to rounding, all percentages used in all questions may not add up to 100%. Of the respondents, 82% were located in the United States, 12% were located in Canada, and 6% did not identify a location. Respondents represented organizations in a wide-variety of industries, including: Finance / Banking / Insurance (18%), Legal (17%), Retail / Wholesale Trade (11%), Computer Hardware / Software / Internet (10%), Manufacturing (10%), Transportation / Distribution (4%), Healthcare / Medical (3%), and a variety of other fields (26%). 22

23 Please select the option that best describes the size of your company. Responses % Percentage of total respondents employees 27.17% employees 8.70% employees 21.74% employees 39.13% Don't know 3.26% Total Responses 20% 40% 60% 80% 100% Select your organization type. Responses % Percentage of total respondents Public Corporation 48.91% Private Corporation 40.22% Other (please specify) 10.87% Total Responses 20% 40% 60% 80% 100% Does your company have economic interests in Canada? Responses % Percentage of total respondents Yes 61.96% No 20.65% Don't know 14.13% Other (please specify) 2.17% (Did not answer) 1.09% Total Responses 20% 40% 60% 80% 100% 23

24 Select the title that best describes your position in your company. Responses % Percentage of total respondents General Counsel 13.04% Marketing 45.65% Marketing (Executive level) 11.96% President/CEO/Executive Management 6.52% Law Firm Partner 16.30% (Did not answer) 6.52% Total Responses 20% 40% 60% 80% 100% 24

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