Canada's anti-spam legislation makes it hard for companies to market their products, writes Steve Szentesi
It’s summer, during a pandemic. Canadians, like much of the world, have been (mostly) locked down for months and only beginning to return to something resembling normal life.
Over the past months, businesses and brands have been hit hard. But advertising clients, including retail brands and agencies, are now coming back online. Marketing for everything from clothing to cars to vacations — if only somewhere in a hypothetical post-COVID future — is increasing.
One area in which I am seeing more activity is in contests. Canadians love them and always have. Apparently they still do even during a pandemic. Recently, my marketing clients have run promotions to promote local Business Improvement Areas, car sales and retail products as stores open again, and (somewhat surprisingly) governments launching new destination marketing campaigns for holidays, including to Asia and the Caribbean.
For many of the recent contests I’ve worked on marketing, as in the past, clients have wanted to incorporate electronic marketing, including capturing e-mails from entrants during a contest, seeking consent to send follow-up e-mails for follow-on promotions to keep entrants engaged in a brand, or sharing a list generated from a contest with a co-sponsor or other marketing partner.
All of these types of electronic marketing require advising on Canada's anti-spam legislation (CASL), including ensuring compliant express consent requests, identification information for marketing e-mails, and an easy “unsubscribe.” These are the holy trinity, so to speak, for basic CASL compliance.
But one area that my marketing clients continue to find mysterious are “friends-and-family”-type promotions. These typically involve a request that entrants share information about a contest or other promotion with their connections for bonus entries into a contest or some other benefit.
In some cases entrants are asked to e-mail their contacts, in others a sponsor will provide a promotional link that can be shared, and in yet others entrants are asked to reach out on social media to spread the word about a contest.
In most cases I have to tell clients, ‘nope, can’t do it.’ ‘But I see friends-and-family promotions run all the time,’ they say. Others ask if limiting the number of e-mails they ask entrants to send will help. And sometimes clients ask if they can insert a nice lawyerly disclaimer in the marketing or contest rules telling entrants they have to comply with CASL before pinging their friends or family about a promotion by e-mail or via social media.
At that point in the conversation, I usually have to explain the rules for these promotions under this (still) largely unintelligible federal law: marketing-related legislation drafted, apparently, by bureaucrats who never had to actually market a product.
What do I tell my marketing clients about the rules from the Canadian Book of Anti-Spam?
First, despite the fact that they (and contest entrants) think they know who their friends are, CASL now defines the universe of friends to be exempt from electronic marketing rules. E-mails to “personal relationships” are exempt from CASL if friends have had “direct, voluntary, two-way communications.” The length of time since friends have communicated and whether they met in person are also relevant.
Not to be outdone by the Canadian Book of Anti-Spam, the Canadian Radio-television and Telecommunications Commission (CRTC) has provided a further gloss as to who constitute friends for this exemption. I will not attempt to include it here, but suffice it to say that counsel is also needed to attempt to understand who the CRTC thinks are (and are not) friends for the purposes of the “personal relationship” exemption.
The CRTC has said, however, that to “prevent potential abuse” of the personal relationship exception, it intends to “strictly interpret” the definition of personal relationship. Potential abuse — uh huh, by sending friends information about a contest.
Second, to help contest promoters and entrants understand who their family is for the “family relationship” exemption, CASL also provides a definition: married or common law parties and parents and their children, assuming of course that they have had direct, voluntary, two-way communication.
Are you married and have talked? Great; you can e-mail your spouse about a promotion. Want to send your parents an e-mail and have also talked at some point? Good news, you’re also in the clear. Want to share a promotion with your brother, sister, aunt, uncle, cousin, niece or nephew who may want to win a prize, too? Risky. Not to be advised.
Third, though a promoter may not itself send any e-mails to other potential entrants, the beings that drafted the Canadian Book of Anti-Spam included a few other liability trapdoors, including one for aiding, inducing or procuring a violation. So, if you ask contest entrants to e-mail or message their friends or family in a call to action, then potentially do not pass Go and go straight to jail.
Finally, while the Canadian Book of Anti-Spam includes a due diligence defence, it is anyone’s guess whether a disclaimer in marketing or contest rules that entrants must comply with the law would cut the mustard. My guess is probably not.
So, in sum, marketers can run friends-and-family-type promotions in Canada, assuming every contact meets the definition of “family relationship” (sorry, Uncle Bob, or any other relative that is not a spouse or parent/child), meets the definition of “personal relationship” (assuming that any marketer or counsel could ever be confident they even understand who is and is not a friend under CASL), and if they are bold enough to take the risk that they are not creating a human network of spammers.
My modest proposal for amending the Canadian Book of Anti-spam for friends-and-family promotions, aside from scrapping the entire legislation and starting over? Provide an exemption as follows:
“Friends and family: E-mail your friends and family. No problem, not even for a contest. Even if you haven’t chatted recently. Really, it’s OK; you know who they are.”
