Download The Marketing Landscape since CASL: One Year Later

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.
Email – 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 email. Meanwhile, the
Canadian email 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. Email marketing is a permission medium.
Marketers need to track their permission level in order to send email to recipients. And these recipients must
be able to easily and quickly unsubscribe.
1
Cloudmark, “Security Threat Report, 2015 Q1”
Most of the initial confusion with CASL
was around permission levels. Businesses
understood that once CASL came into effect,
marketers sending email 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 email to a person prior to
July 1, 2014 had “implied consent” and could
continue to send them email. However, they
needed to have historical records and proof
that they had previously mailed this person.
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.
Unfortunately, the threat of hefty fines
prompted many companies to make the hasty
decision to send reconfirmation campaigns
to their entire email 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 email
subscription or we won’t be able to send
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 emails. 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 email senders, verify everything through
your legal teams before you send again.
you email” approach. The result in many
cases was that only 5% -10% of subscribers
checking the box (see sidebar)!
“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, http://laws-lois.justice.gc.ca/eng/
acts/E-1.6/page-20.html#docCont
2
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 email.
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 email 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 email, even for legitimate mailers.
Volume of Email
is unchanged at 16%
red)
CASL Implemented
Le
Spam
Source: Cloudmark Security Threat Report, 2015 Q1
3
Cloudmark, “Security Threat Report, 2015 Q1”
There are 4 factors why the overall volume of email 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 email 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 email 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 email
portals are a better way to manage regional and local email 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 email 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 email 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, email marketers still need to be vigilant. Check your list hygiene and permission tracking to
ensure you are compliant. Conduct an annual CASL audit.
Looking forward… if you deploy to some implied consent recipients, you need to start getting ready for July
1st, 2016. 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 email marketing. Matthew ensures that Inbox Marketer’s clients are compliant
with all relevant industry regulations including: CAN-SPAM, PIPEDA, and Canadian AntiSpam Legislation (CASL). He actively shares his thoughts on industry trends via his own
social marketing blog, EmailKarma.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 email marketing insights,
trends, and tips visit inboxmarketer.com
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