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CASL doctrine: Lititz firm Listrak advising clients on Canada's strict new spam law

By Tim Stuhldeher

Lancaster Online, June 30, 2014

For someone whose company is based in Lititz, James Koons has been thinking an awful lot about Canada lately.

That's because Tuesday marks the debut of that country’s anti-spam legislation, dubbed CASL for short.

Koons is chief security officer for Listrak, an email and online marketing firm. As many as two-thirds of its clients face potential legal risk from CASL, he said.

“It’s been a crazy last couple of months,” he said.

Canada is the last G8 country to enact an anti-spam law and “it’s the toughest of its kind,” Koons said.

The law defines spam broadly and its penalties are tough. Basically, any “commercial electronic message” sent or received in Canada falls under the law. Fines can range as high as $10 million per violation.

The law covers much more than the kind of ads that people ordinarily think of as spam. Commercial electronic messages include order confirmations, shipping notifications, renewal reminders, you name it.

Under CASL, companies must receive prior consent before sending someone an email. They must always identify themselves clearly and always give customers an opt-out choice.

The law does have a phase-in period. If your firm already has a business relationship with someone that includes emailing, you’re presumed to have “implied consent” for the next three years.

Any company that communicates with or ships to Canada should evaluate its compliance risk under CASL, Koons said.

Listrak’s expertise is in IT and marketing and it does not provide legal advice, he noted.

Companies may be at risk without realizing it, he said. Many Canadians have “.com” email addresses rather than the Canadian country suffix “.ca,” so just scrubbing the latter from your email list won’t eliminate potential liability.

Moreover, if a U.S. customer happens to travel to Canada and opens your email there, “that email is covered by the act,” Koons said.

Emails are exempted when there’s a “reasonable belief” they’ll be opened outside Canada, but the exact parameters of “reasonable” have yet to be defined, he said.

There’s concern the law may trigger a wave of frivolous lawsuits by people trying to cash in on the law’s penalties, he said.

Lititz-based Susquehanna Bank’s branches are all in mid-Atlantic states. Still, it checked with Listrak to make sure its emails weren’t putting it at risk.

Those emails go primarily to existing customers, spokesman Steve Trapnell.

That would give them “implied consent” protection under CASL. Still, Susquehanna decided to filter out “.ca” email addresses from its mailings, Trapnell said.

There were few such addresses, so the change is a minimal one, he said.

“We will continue to monitor the Canadian regulations to see what additional steps may be appropriate,” he said.

Koons belongs to a number of industry organizations that were heavily involved in lobbying and consulting as the law was developed. He and several Listrak colleagues were part of those efforts, he said.

Canadian firms, of course, are the main focus of the law, and they are scrambling to comply. Many are sending emails to their existing lists before CASL takes effect, asking subscribers  to opt in on receiving emails. The result: a mini-tsunami of spam attributable to the anti-spam law.

Canadian Tom Ventser, who lives outside Montreal, said he’s been getting those emails. Most are from companies he wants to hear from, and he’s been clicking “yes” on those, he said.

It’s been especially hard on small business he said. A friend in real estate is getting stressed because his emails seeking permission for future communication are getting caught in clients’ spam filters and aren’t being seen, he said.

Here in the U.S. some of Listrak’s clients are calculating whether doing business in Canada is still worth it, Koons said. If they only ship a few packages there a year, they figure it might be easier and safer just to discontinue doing so, he said.

Canada is Pennsylvania’s largest international trade partner by a wide margin. In 2013, it accounted for 28.5 percent of the commonwealth’s foreign trade, according to federal data. Trade with partner No. 2, Mexico, was just 8.4 percent.

Despite his concerns, Koons stressed that the law can be dealt with.

“It’s not the end of your email marketing efforts,” he said, but “it’s definitely an eye-opener.”

 

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