CASL Private Right of Action Delayed

Today the Canadian Government announced they were suspending the provision that allows individuals to sue marketers for violations of CASL.
Under these provisions, individual Canadian consumers had a private right of action. Any Canadian could sue any company that sent mail violating the law. This part of the law upset many senders and marketers. I’m sure many are relieved at this delay in enforcement.
 
This delay has no effect on the other major CASL provision with a July 1, 2017 deadline.
On July 1 a 3 year waiver on implied consent collected prior to CASL will end. What does that mean? Implied consent is just what it sounds like. Under certain conditions, senders can assume they have legal consent to mail the recipient. These conditions are spelled out in Section 10(9) of the law. Implied consent expires after 2 years. However, companies were granted a 3 year waiver on this provision for email addresses collected prior to July 1, 2014.
The waiver allowed senders to continue mailing addresses with implied consent even after the 2 year expiration.  This was to allow companies time to convert implied consent into express consent as to not lose recipients. There are about 3 weeks left for senders to get explicit permission to continue mailing addresses collected prior to July 1, 2014.
Additionally, as of July 1, 2017 CASL requires a parliamentary committee to review the law and its operation over the last 3 years.

Many senders are thrilled with the indefinite suspension of the PRA. It was, I think, one of the parts of the law that worried people the most. Allowing any citizen to sue someone who sent them mail they thought violated CASL? That concept struck fear into the hearts of many a legitimate marketer. I was never quite so sure it was going to be as bad as some thought.
A few years ago I had the opportunity to sit in a conference session with an individual from the Canadian government. They explained that there were significant barriers to individuals suing senders. Plaintiffs must file in provincial courts, not local ones. Second, defendants couldn’t be under investigation by the CRTC and a PRA at the same time. The presenter implied that CRTC had priority over any joint defendant. Finally, the plaintiff must prove actual damages. This is difficult for defendants that use a freemail provider like Gmail. There aren’t really damages in that case.
The overall gist of the session was that PRA in Canada was not that simple. Individuals wanting to sue had some bigger hoops to jump through than just filing something in small claims court. Nevertheless, I’m sure that many senders are relieved to hear the PRA is indefinitely suspended.

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October 2016: The Month in Email

We’ve returned from London, where I spoke at the Email Innovations Summit and enjoyed a bit of vacation. My wrap-up post also mentions an article I wrote for the Only Influencers site, which looks at questions I get asked frequently: “Why does spam make it to the inbox and our legitimate marketing email doesn’t? Should we just copy their tactics?”
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In industry news, Yahoo caught our attention for two surprising moves: disabling forwarding and — much more disturbing — creating software for intelligence agencies to search customer email.
Some legal updates this month: The Second Court of Appeals upheld an earlier ruling that companies are in fact liable for the activities of their affiliates, including spam and fraudulent claims. This is important, as we often see spammers and cybercriminals use affiliates to distance themselves from these activities. We also saw another fine assessed for a violation of CASL, and noted with appreciation the transparency and thoughtful process that the Canadian Radio-television and Telecommunications Commission (CRTC) demonstrates in explaining their actions.
Another excellent report is the one created by the Exploratorium to explain their recent experience with being phished. It’s a good piece to share with your organization, in that it reminds us that these cybercriminals are exploiting not just our technology but our trust-based connections to our friends and colleagues. It’s important to raise awareness about social engineering as a part of information security. And speaking of email security, we were delighted to note that André Leduc received the 2016 J.D. Falk award this month at M3AAWG for his excellent work on this topic. It’s a fitting legacy to our friend, J.D., who died five years ago this month. We miss him.
Finally, we’d be remiss in observing Halloween without a post about zombies. Feel free to read it aloud in your spookiest voice.

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Things to read: March 9, 2016

It’s sometimes hard for me to keep up with what other people are saying and discussing about email marketing. I’ve been trying to be more active on LinkedIn, but there are just so many good marketing and delivery blogs out there I can’t keep up with all of them.
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Here are a couple interesting things I’ve read in the last week.
Five Steps to Stay Out of the Spam Folder. Conceptually easy, sometimes hard to pull off in practice, these recommendations mirror many things I say here and tell my clients about delivery. The audience is in charge and your recipients are the best ally you can have when it comes to getting into the inbox.
Which states are the biggest sources of spam?. California and New York top the list, but the next two states are a little surprising. Over on Spamresource, Al points out the two next states have some unique laws that may affect the data. I just remember back in the day there were a lot of spammers in Michigan, I’m surprised there’s still a significant volume from there.
CASL didn’t destroy Canadian email. Despite concerns that CASL would destroy the Canadian email marketing industry, the industry is going strong and expanding. In fact, spending on email marketing in Canada was up more than 14% in 2015 and is on track to be up another 10% this year. Additionally, according to eMarketer lists are performing better because they’re cleaner.
A brief history of email. Part of the Guardian’s tribute to Ray Tomlinson, the person who sent the first email. Ray’s work literally changed lives. I know my life would be significantly different if there wasn’t email. Can you imagine trying to be a deliverability consultant without email? 🙂

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The 10 worst …

Spamhaus gave a bunch of us a preview of their new “Top 10 worst” (or should that be bottom 10?) lists at M3AAWG. These lists have now been released to the public.
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The categories they’re measuring are:

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