Staying compliant with anti spam laws isn’t easy. Even if you’re a stringent i-dotting, t-crossing bureaucrat, existing legislation is complex and, due to the fast rate of technological evolution, always subject to change. 

As tough as it is for marketers, it’s twice as bad for lawmakers, who must keep pace with a rapidly-shifting digital landscape from the context of traditional legal infrastructures (where change is typically glacial). Our capacity to pass new laws remains hobbled by a post-enlightenment attitude of checks and balances, where legal stability demanded slow, steady progress.

In the pre-globalisation era of unilateral regulation, this approach to corporate law made perfect sense. In the Internet Age, it makes virtually none. Legislative bodies all over the world are ill-equipped to tackle the borderless, international context of e-commerce. 

So it is with great interest that the global community awaits the upcoming introduction of Canada’s Anti-Spam Law (CASL). It will take effect incrementally starting on July 1, 2014. Parts of the law will not take effect until July 2017.

The principal aim of the Canadian legislation is to clarify many of the grey areas that have dogged previous anti-spam measures. Consistent with new global practices for commercial email, the guiding principal here is “explicit consent”. Historically, implied consent was regarded as sufficient. The main requirements of CASL are as follows:

• Permission. Now, granting permission to communicate with potential customers requires explicit permission – although there are some exceptions, such as pre-existing business relationships.
• Private right of action. From the consumer’s point of view, this is one of the most important bits of legislation. Individuals can now bring a lawsuit against companies that breach the law; they have the right to apply for compensation. This piece of legislation will not take effect until 2017.
• Three year grace period for consent. Designed to streamline the legal process by preventing frivolous lawsuits, the grace period implies consent for three years, but requires explicit consent thereafter.
• Recorded proof of consent. Businesses must offer a clear unsubscribe option. They must also keep records of consent granted.

The legislation is of major significance for lawmakers across the world. It unites two existing strands of Canadian law relating to privacy and telecommunications. Up until now, the legal infrastructure has lacked a comprehensive framework for online commercial transactions and web marketing practices.

Compared with other G8 countries, Canada’s legislation is the harshest of its kind. The most radical elements of CASL are the extra-territorial limits placed on web communications, which will mean any electronic message sent from a Canadian IP address will be subject to the law, irrespective of its destination. The first legislation of its kind in the West, CASL does not limit its jurisdiction to fraudulent or deceitful messages – it applies to any commercial message issued without the recipient’s prior consent, effectively sounding the death knell for spam.

It remains to be seen whether other countries will adopt similar legislation. Some analysts believe the United States will wait to see how CASL plays out before changing their existing laws (known as CAN-SPAM). The crucial difference between CASL and CAN-SPAM is that the latter still works according to the opt-out method, whereby businesses have implied consent to communicate until recipients unsubscribe from the contact list. It is this single change of approach that threatens to forever change the way online marketing is conducted.

If mobile marketers can bring anything to the table, it is their experience in terms of adapting – and in some ways spearheading – the era of opt-in communications. Text marketers in the US were far ahead of the curve in this regard, and were well-primed for their own industry’s tightened regulations, which came about as part of last year’s Telephone Consumer Protection Act.

The lesson to be learned from the way that particular transition was handled is that invention really is mothered by necessity. Mobile marketers were more than ready for the change in legislation. Web marketing enterprises across Canada will be hoping to emulate the US mobile industry when the first raft of CASL changes are introduced this year.