New Anti-Spam Law Throws Canadian Publishers into a Tailspin

Expert publishing blog opinions are solely those of the blogger and not necessarily endorsed by DBW.

This summer, Canadians were inundated with emails requesting us to opt-in to email lists. The pleas were sparked by Canada’s anti-spam legislation (CASL, commonly pronounced castle), which came into effect July 1. Canadians can no longer send commercial emails, text messages, or instant messages without consent. The new legislation has put a strain on many publishers, as they struggle to modify their direct sales and marketing tactics to comply with the legislation.

“A huge part of our business is course adoption, so we email professors very regularly introducing books in their subject areas . . . We send out thousands and thousands of those emails every month,” explains Laraine Coates, marketing manager for UBC Press. “When CASL came down, I was quaking, because I was thinking, How are we supposed to reach these people?”

Many publishers undertook time-consuming opt-in campaigns over the summer, to try to obtain express consent from the people on their current email lists. The publishers I spoke with for this blog post all said their mailing lists dropped by about half. Most publishers are putting a positive spin on the drop. As Erin Creasey, Sales and Marketing Director for ECW Press, says: “It doesn’t matter if you have those names on there if those people aren’t engaging and don’t get it.”

Implied consent
CASL also permits businesses to send commercial emails if they have implied consent. There are a few forms of implied consent, including:

  • Conspicuous publication
: The recipient’s contact information is published in plain sight, for example, on a website or in a trade magazine.
  • Disclosure
: The contact information is given to the business, for example, if people give you their business card or address.
  • Existing business relationship: 
The person has made a transaction with the company or inquired about purchasing its goods or services.

Problems with data management
The implied consent rules come with an additional challenge: the consent is only granted for two years. That means publishers have to track how long they’ve had an individual’s email on file. “Trying to manage our list is completely daunting,” says Coates. For example, a publisher may have implied consent to email a professor whose email address is available on a university website, but they now have to go back to that website every two years to confirm that his email addresses is still up. Multiplied by many thousands of email addresses, and you have a data-management nightmare.

UBC Press now notes in its spreadsheets where they got the email addresses and when; every time they update a list they indicate the date it was updated. “We have a lot more work to do now,” Coates says.

The impact on bulk sales
Margaret Bryant, director of sales and marketing for Dundurn, says one of the bigger shifts for them relates to bulk sales to companies and organizations. “We’re no longer allowed to do unsolicited email communication with these people,” she says. In the past authors would give Dundurn a list of leads, which a sales person would follow up on. Now their authors have to qualify their leads.

“It’s actually made us stronger,” Bryant says. “There were a lot of unqualified, blind leads that didn’t amount to sales…By asking them to be more precise about those leads, [we’re] using [our] time more wisely.”

Grey areas
The Association of Canadian Publishers engaged a lawyer to provide its members with advice around the legislation, and they held a webinar on the subject. Other publishers have been guided by in-house counsel or have been interpreting the legislation themselves. Still, there’s a lack of consensus among Canadian publishers about which sales and marketing activities are legal and which aren’t. For example, some think making the equivalent of an email cold call for bulk sales is in fact legitimate.

“The point of the law seems not to be preventing these types of genuine business interactions,” says Creasey. “We all know what email spam looks like, and that’s not what we’re sending.”

There are also a lot of grey areas. For instance, in the case of a publisher subscribing to a third-party database for publicity outreach, does the publisher need to get consent from the people in that database? Does the database provider? A lot of these questions won’t become clear until the legislation is challenged in courts.

Three-year grace period
CASL gives businesses a three-year adjustment period. No one can be charged under the legislation until July 2017, after which the CRCT (Canadian Radio-television and Telecommunications Commission) can issue warnings and penalties. Penalties for very serious violations can go as high as $1 million for individuals and $10 million for businesses.

For now Canadian publishers and self-publishers are busy trying to build legitimate email lists. Meanwhile, Canadians continue to receive unwanted emails from other jurisdictions, leaving some to question how useful CASL is at protecting Canadians from spam.

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Expert Publishing Blog
Trena White

About Trena White

Trena White is co-founder of Page Two, a new form of agency that helps non-fiction authors navigate the full range of publishing options and that consults with organizations about digital publishing. She is the former publisher of Douglas & McIntyre, which was at the time Canada’s largest independent publisher. Before joining D&M, she worked as a non-fiction editor at McClelland & Stewart. She guest lectures regularly at Simon Fraser University and the University of British Columbia and holds a master of publishing from SFU. She blogs about digital publishing in Canada. She can be found on twitter @trenawhite.

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