Are U.S. Travel Marketers Ready for Canada's New Anti-Spam Law?

A fine of $10 million tends to make you sit up and pay attention.

That’s the maximum penalty for non-compliance with new regulations that will take effect July 1, 2014—less than a month away—impacting all commercial electronic messages (CEM) sent to Canadian businesses and individuals.

The new regulations are outlined in Canada’s Anti-Spam Law (CASL), which was originally legislated back in 2010. I’ve been following this story closely for the past month and tweeting about it to my followers. Frankly, I am surprised there haven’t been more articles about it in the U.S. travel trade press, considering the fact that cruise lines, tour operators and travel agents rely so heavily on the use of electronic databases of customers and prospects to market their programs.

U.S. and other non-Canada-based companies aren’t exempt from the new law, and if their databases look anything like the ones I’ve helped build at travel companies over the past several decades, there are plenty of Canadian addresses in those customer and prospect files.

For the past ten years, the go-to promotional mediums for getting the message out on new travel products and special offers to these databases have been emails, e-newsletters and, more recently, social media. As defined by the new Canadian legislation, these all qualify as CEM, although there are some exceptions for social media postings. Texting to mobile phones also qualifies, although I haven’t seen any of this type of promotional outbound activity from cruise and tour operators.

Most travel companies that use email and e-newsletters are familiar with already existing U.S. CAN-SPAM regulations. Fundamental here are requirements to accurately identify yourself, provide a physical address for your business (i.e. street address or post office box) and include a mechanism that easily allows the recipient to “opt-out” of receiving some or all future messages. This is all pretty basic stuff that any self-respecting direct marketer is familiar with, and EMS (email marketing service) providers like Mail Chimp and Constant Contact make compliance relatively painless.

What’s new and different about CASL?
The game-changer is that Canada will ultimately oblige marketers to get an okay from recipients for ongoing communications. This goes beyond providing an “opt-out” option (which will still be required), and necessitates getting express consent or “opt-in” permission to further communicate with customers and prospects. And, for all intents and purposes, the opt-in must be in writing with the date of the “opt-in” noted for the record.

Now, I can hear many travel marketers moaning that their customers and prospects have already provided an implied consent to receive CEM through the very act of requesting a brochure or having traveled with the company in the past. While this will do for a while—there is a three-year transition period that begins July 1—the companies will have to modify their emails and e-newsletters going forward to secure express consent; i.e. a written, “opt-in” communication from the recipient.

Some marketers will also gripe that if their database record consists only of an email address and no physical street or P.O. box address, there is virtually no way to know if the address belongs to a Canadian business or resident. No matter. The responsibility to determine this, along with securing express consent, lies with the marketer.

Challenges for small businesses
I assume that larger travel companies, if they haven’t done so already, are now in the process of checking with legal counsel and with their advertising or direct marketing agencies about taking their databases to the next level, which will include a record of the express consent.

But for smaller travel operators and agencies—or for any marketer of other products or services as well—the time and resources to undertake such an upgrade could prove daunting. Some of the difficulties facing small business operators were discussed recently in Travel Market Report. These challenges include:

The cost in money or internal staff time to revalidate and ensure all Canadian customer and prospect files in company databases are “opt-in,” with a record of that correspondence;
The customer's natural sluggishness to respond to “opt-in” requests, with many of them likely to be overwhelmed with such requests by all sorts of businesses over the next few months;
The cold, hard fact that years of effort in building up productive databases from multiple sources could be undone, with the resulting number of names significantly reduced; and
The likelihood that the new law won’t actually stop egregious spammers from their practices and whose locations are practically impossible to determine.

Enforcement is another issue. How do Canadian authorities plan to reach out and penalize non-compliant marketers in other countries? Will they have jurisdiction or any real ability to do so? The resources required for businesses to comply with CASL is one thing, but the Canadian government budget needed to follow up and prosecute every complaint will be of an entirely different magnitude.

Across the board, compliance and enforcement will cost businesses and the government millions of dollars, and the real effectiveness of the effort can honestly be questioned. Nevertheless...

What should you do now?
If you’re not already familiar with these pending CASL regulations, you need to take a few hours to familiarize yourself with the terms and general guidelines. The following links are good places to start:

Fast Facts about Canada’s Anti-Spam Legislation, Government of Canada
Frequently Asked Questions, Government of Canada (Note: I found this page particularly helpful, and you’ll find clarification on social media promotional postings here, too.)
“Why You Should Care about Canada’s Anti-Spam Law,” Direct Marketing News
“A Detailed Look at Email Consent and Canada’s New Anti-Spam Legislation (CASL),” YesMail Interactive (This article has a useful graphic flow chart that walks you through the questions you’ll need to ask yourself about compliance.)
Mail Chimp’s “About the Canada Anti-Spam Law (CASL)”

What appears to be important at the outset is making a good effort at compliance, and showing that as a marketer you are trying to do the right thing by your Canadian customers and prospects. In short: pursue a best-practice policy with your CEM.

Draft a simple plan and timeline on how to proceed with upcoming mailings, and how you will incorporate the new requirements in your CEM going forward. You've got a transitional "grace" period of three years, but that will go by in a jiffy. So get started soon.
Keep a paper trail that you could show Canadian authorities in the unlikely event that you would be contacted for possible non-compliance.
Use an EMS provider such as Mail Chimp or Constant Contact, not only for e-newsletters, but also for simple emails to these databases. These no- or low-cost services have the tools to make your job a lot easier. Mail Chimp, for example, recommends a double opt-in process, which is available now and keeps a record of the recipient’s IP address along with the date and time of confirmation.

Remember, the responsibility is yours to find out whether or not existing records in your customer and prospect databases—even if the records are nothing more than an email address—belong to a business or individual residing in Canada. Make the effort, and document your effort.

Good luck!