11/05/2014 05:55 EST | Updated 01/05/2015 05:59 EST

Why CASL Is Not the End for Digital Marketers

Not getting express consent doesn't mean you can't continue to communicate, you just have to be more careful and systematic about it. This is especially true of those recipients who didn't respond to your pre-July 1 campaign, assuming you had one. The game isn't over but we are in overtime, and regulatory compliance shouldn't be the only goal of an organization's CASL implementation plan.

I live a dual life. This became apparent in July with the yin and yang of my two inboxes. One deals with mail for the CMO of Deloitte and the other for a time-pressed mother with a passion for cycling, reading and the convenience of online shopping. Among my friends and family, the second inbox fills with offers from sports retailers, summer camps, fashion houses, publishers -- and unsolicited emails from window cleaners and the occasional person from a foreign land who needs my "assistance" in obtaining their fortune. So when my inbox traffic slowed dramatically on July 1st as Canada's new anti-spam legislation (CASL) came into effect, I was relieved.

Well, partly. The silence of the first inbox was not a relief. In that case, I was anxious as our team had embarked on our own program to ensure that we were CASL-compliant -- asking our clients for their permission to continue sending them emails -- or, in technical speak, commercial electronic messages (CEMs).

Like most marketers who increasingly rely on digital channels to reach the market with engaging content and invitations to important events, I had been very apprehensive about what Canada's new restrictions on the use and form of CEMs would mean for our business.

Indeed, those first days were anxiety-inducing for all of us who create marketing campaigns, manage distribution lists and analyze data. At Deloitte, we learned quickly; about the law, about our technical capabilities and, about our market. Then we waited to see how many folks who received our emails would express their consent to continue to receive them.

It's now been several weeks and, from where I sit, CASL is not the death knell for digital marketing in Canada. On the contrary, I believe the new legislation creates an unprecedented opportunity for brands to overhaul their approach to customer experience and drive new levels of consumer loyalty.

One step back, two steps ahead

Consumers need protection. My colleagues tell me that more than one trillion spam emails are sent globally every day, representing 90 per cent of all email traffic, where 1 in 24 emails contains malware and 1 in 445 constitute "phishing" -- emails that masquerade as being from trustworthy familiar sources in order to trick you into providing sensitive personal information.

Canadians are serious about protecting their privacy and punishing those who breach their trust, and the federal government heard their concerns. Consumer privacy and protection is now taken more seriously here than anywhere else in the world. The new law imposes fines of up to $10 million for businesses and $1 million for individuals, per incident of a CEM being sent without a recipient's prior consent. A CEM is defined as any message whose content, hyperlinks or contact information is designed to sell, promote or advertise a product or service and that is sent to or from an electronic address. Examples include email, SMS text messages and messages sent to individuals via social media services like Twitter and Facebook.

In the digital age, consumers increasingly expect to interact with brands wherever, whenever and however they want. And brands that can provide that experience while demonstrating that they are equally as protective of consumer privacy as consumers themselves will reap the rewards of competitive advantage.

Hindsight is 20/20

Seeking express consent electronically before CASL took effect allowed businesses to continue to send CEMs to recipients and eliminated the need to track the two-year period associated with the business relationship rule for "implied" consent - tacit agreement from people with whom you've done business because they have not explicitly said they don't want to hear from you. Our advice, to the extent that you can help it, is not to rely on implied consent at all: convert your implied consents into "express" consents -- explicit acknowledgment that your CEMs are welcome -- as diligently as possible.

Not getting express consent doesn't mean you can't continue to communicate, you just have to be more careful and systematic about it. This is especially true of those recipients who didn't respond to your pre-July 1 campaign, assuming you had one.

The game, in other words, isn't over, but we are in overtime, and regulatory compliance shouldn't be the only goal of an organization's CASL implementation plan. As Deloitte's resident CASL guru, Sylvia Kingsmill, puts it: "CASL is an opportunity not only to 'clean up' digital marketing practices but also to standardize the means and manner in which both consent is sought and current contact lists are managed."

Consider the following three perspectives as you plan your go-forward activities.

1. Loyalty begets loyalty

CASL is an opportunity to demonstrate transparency and accountability. A 2011 survey conducted by the Office of the Privacy Commissioner of Canada found that 63 per cent of Canadians are concerned with businesses using personal information to send spam, while 70 per cent say they are concerned that people or businesses they don't know could obtain access to their personal information, or that of their families, to commit crimes.

The upshot is clear: transparent demonstration of respect for your consumers and their demands for privacy protection can lead to increased brand strength and the revenues that are sure to follow.

2. Remember Pareto's principle

Didn't get as many responses to your express consent campaign as you were hoping? A 20 per cent response rate have you worried 80 per cent of your client base is stranded in the digital wilds? Don't despair just yet. Ultimately, a situation like this may simply have revealed not that you just lost a huge part of your customer base -- but that you never really had them at all. That (if you'd forgotten) is Pareto's principle: 80 per cent of results (e.g., sales) come from 20 per cent of causes (e.g., customers).

You have two options at this point: go crazy trying to find ways to bring those numbers back up, or work on delivering an exceptional experience to the ones you retained and let the numbers take care of themselves. For loyalty's sake, go with the latter.

3. Observe the "10/10" rule

Senders of CEMs will have to ensure that any recipients who click the unsubscribe button and deny or revoke consent are removed from distribution lists within 10 days of that click. If you are planning on sending a second communication and the process you have in place to remove names from the list is slow. You must send your next communication by day nine or have your list reviewed again on day ten to make sure you are not offside.

Over time, it's going to get more complex: as you work to convert implied consents to express consents, you're going to be updating your lists daily as communications and consent responses overlap. Invest in patience, technical capability and a good data analyst.

I like the fact my own inbox is a lot quieter. It's like 1-800-Got-Junk loaded up its truck and left my driveway with all those useless knickknacks and I now have room to admire my real treasures, including my new Nike trainers.

I wonder if they're in yet. Maybe they'll email me to confirm.


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