Thursday, July 03, 2014

Anti-spam legislation and opt-in provisions will likely be challenged in court by summer's end

The CASL anti-spam legislation has been a massive makework project for the Canadian magazine industry, for its publishers and their staffs. Magazine readers were asked quite recently -- mostly in the week leading up to Canada Day -- to give explicit permission (called opt-in) to have e-mailed communications sent to them by Canadian magazine publishers. 

There is no data available about a) how many magazines have done this (or are even aware of the situation) and b) how many readers responded positively. I suspect that there will have been some slippage as many readers considered whether they really wanted to be on dozens of mailings lists, whether they really wanted to continue receiving dozens of e-letters and wondered how the heck they'd got there in the first place. 

But publishers had already modified their direct mail, e-letter signups and similar to gain reader buy-in. The whole thing just added to the workload. Some seemed to fear that the spam police were going to be at their door on July 2. Not true. 

There is a three year phase-in before enforcement will be required and, even then, it will be complaint-driven (what is called "private right of action"). The Canadian Radio-television and Telecommunications Commission (CRTC), which is charged with enforcement, is still trying to figure out how it will document and assess the expected thousands of cases that will come their way; not only in the magazine business but in businesses generally, anyone who contacts customers unbidden and maintains a customer database. 

The magazine industry has been briefing its members for more than a year about CASL and its requirements and most publishers paid attention. A lot of them have already found ways to be compliant and to keep up their readership and subscriber numbers. 

Magazines are just one sector in the Coalition of Business and Technology Associations opposing certain aspects and trying to amend the anti-spam legislation, which came into force July 1. It would probably be wise to wait until the first person or business is actually charged three years or more from now (and it could be an independent flower shop or other small business every bit as likely as a small cultural magazine) then get behind and support them in the long, winding road to the Supreme Court (which is where such a test case could end up in 10 years or so.) That's a wise course and reflective of reality, but it may not be the way things play out.

Some of the members of the coalition, led by the Canadian Chamber of Commerce, backed up by the Canadian Marketing Association, are considering a court challenge and it may be launched by the end of summer, apparently trying to get out ahead of the three-year deadline (and therefore keeping their members satisfied that something is being done in return for their dues.) It will certainly make lawyers rich (such a challenge could cost $500,000 or more.) 

But meanwhile, publishers will be figuring out how to do what they do best, which is serving their customers and giving them content that they'll be happy to opt into. Seems a better use of time and money, frankly.
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