Wow, that hour went fast!  The estimable Shaun Brown, partner, nNovation LLP, a law firm based in Ottawa, Ontario, Canada, spoke about the new Canadian privacy legislation – referred to as Canada’s Anti-Spam Legislation (CASL – an acronym that many speak like the word “castle”) – that has many email marketers confused on compliance requirements and timing.  Listen to the November 10th webinar (and we highly recommend it) for free here.

Brown compared CASL to something many of us already know – the U.S. CAN-SPAM law of 2003.   Bottom line:  In many areas – permission, notice, coverage and risk – CASL is much broader.

• Scope:  CASL covers not just anti-spam, but also anti-malware, anti-hacking, and through related amendments to other legislation, control of content and misleading information, as well as privacy of personally identifiable information (PII) (harvesting, dictionary attacks).
• Application/Jurisdiction:  CASL covers any message sent from or accessed by a computer in Canada (regardless of where the sender is located).  We are talking about all electronic messaging – email, instant messaging, SMS, social – plus anything new that comes along.  (Fax and voice are covered by Canadian do no call regulations.)
  1. Note that there is no minimum number of messages. So sending one message is enough to put you under jurisdiction of the law.
• Coverage:  CASL applies to commercial activity, defined pretty broadly.  For example, Brown said in the webinar, if you are promoting a person who normally promotes a product or service or business opportunity -  even if you are not specifically promoting that product, service or business opportunity in the message -  then your message is covered.  
  1. Note also that any message sent to seek consent is considered commercial – so you can’t send a request for consent. There are no exceptions for research studies, for example. “This will have to play out in the courts in deciding what is ‘commercial,’” Brown said.  “I would not be surprised if this was challenged.” As the law is enforced, Brown says, we will have more guidance on what is considered “commercial” under the Act.

Compliance with the anti-spam aspects of CASL encompasses three broad categories:

1. Prior consent – defined as either express or implied.  Both are acceptable for all situations and of equal value.  (Implied does expire, though.)
   
   a.    Express: Must include clear notice and the provision of a set of prescribed info from subscribers when providing consent.   The owner or any authorized user of the email address must give the consent.
   b.    Implied:  The Act deems implied consent when there is an existing business relationship (e.g.: a customer who has purchased in the past two years, or if there is a contract or a subscription which has been active in the past two years.)
   c.    Once consent is implied (e.g.: a purchase), you generally have two years to send messages in compliance (or obtain an express opt in).  An express consent never expires, and is valid until the individual withdrawals consent.
2. Information
   
   a.    Must include contact information for the sender and the subscriber.  It is not clear in the law what this must include.
   b.    Regulations are expected to define this further.
3. Unsubscribe
   
   a.    An unsubscribe opportunity must be provided in all messaging and be available for  60 days post delivery.
   b.    Unsubscribe requests must have no cost, and use the same means by which the message was sent (unless impractical), either via replyto: or a link.
   c.    Must be processed “without delay” (and within 10 days) with no messages sent after the request.  This aspect may also be defined further with regulation.  “Senders must be able to demonstrate that you put forth a best effort to act on unsubscribe requests quickly, with the intent to stop messages,” Brown advises.

CASL was created with both public and private enforcement opportunity.  The Canadian Radio & Telecommunications Commission (CRTC) is charged with enforcement.  This is a civil enforcement agency, there are no criminal provisions.  There is a private right of action available to any individual impacted.

Right now, the law is not in force.  It was passed in December 2010 and regulations were published for comments this past summer. The Government is still working through those comments (there were many!).  No timetable is published for a second set of regulations; however Brown expects something by early 2012.   The government is also setting up a Spam Reporting Center, which will be a website to gather evidence and monitor trends as well as provide consumer education.


In preparation for enforcement, Brown recommends three primary areas for marketers and senders:

1. Check your lists. Do you have consent – and evidence of consent?  The burden is on the sender to prove consent.
2. Check location of subscribers where possible.  The law doesn’t care what the domain of the address is, or if the sender has a clue where the recipient is.  If the message is received on a computer in Canada then it applies.  If a sender does make an attempt to gather this data, This may be a factor in exercising the due diligence defense, where no one can be charged if they have shown due diligence to comply.  “Be sure you have a business objective in NOT complying with the Canadian legislation,” Brown says.  Note that reconfirmation of some permission grants may be necessary.
3. Watch for regulations re: content of messages. The regulations will clarify the information required when obtaining consent as well as when sending a message.

As with any legislation, the devil is in the details.  The Email Experience Council recommends that you have legal counsel review the law and determine the next best steps for your organization. In the webinar, Brown gave his thoughts on some key business issues and applications:

• Liability of service providers.  Telecom/ISPs are generally going to be exempt from liability under the anti-spam provisions where they merely provide the telecommunications service allowing the message to be delivered. However, it’s not clear if this applies to email delivery service providers.  “If you are merely providing a ‘do it yourself’ service and the customer manages the list and the unsubscribe, then it may be that the delivery provider is covered under the Telco exemption,” Brown says.  “This may be different if you offer a full service offering.”
• Ownership of the message, for example, placing ads in an editorial newsletter or providing the name of the email delivery vendor in the message itself is not directly addressed in the law.  “In my view it doesn’t make sense from any perspective to say that the ESP is sending on your behalf, for example identifying the ESP in the message,” Brown says.  There were a number of comments on this as the regulations were reviewed this past summer, and Brown hopes that some clarity will be offered in future revisions.
  1. This brings out the question of where an agency or service provider is vulnerable by trusting their client.  If the agency or ESP sends unsubscribe data to the sender, is the agency responsible if the client doesn’t take action?  “The law is broad, so if you are aiding or causing company to avoid compliance, then you are potentially responsible.  The way to manage risks like this is to inform your customers of their obligations, make sure you have the appropriate language in your agreements, and ensure the relationship agreements are clear who is taking responsibility for managing unsubscribes requests,” Brown advises.
• Transactional messages.  The legislation does not refer to “transactional” messages.   The law does cover some types of messages that could be considered transactional (e.g.: service notices or warranty information).    The law states that these types of messages require an opt out.  “This somewhat confuses the issue, by listing out messages that, in many cases, are likely not commercial electronic messages and therefore not covered by the Act to begin with,” Brown explained.
•   Point of Sale.  What if you ask verbally for consent at the POS?  Brown says that the original draft regulations from the summer declare that consent must besought in writing only.    However, this may be removed based on the amount of comments against it. “I would like to think that if you are entering this into a system form, and there is a date stamp, that this would meet the evidentiary burden under CASL,” he says.
  
  1. There is no legal requirement to send a follow up message, but “It’s always good idea to remind people of their subscription and why they have provided consent.  It’s more of a relationship issue than a compliance issue,” Brown says.
•  Is list rental dead?   A properly compiled permission based list is quite valuable, and the law does not forbid the rental of them.  “It’s not dead, but CASL places a higher onus on list owners and senders to make sure it’s done properly,” Brown says.
  1. The act of appending is not covered under CASL. It is likely covered under privacy laws, particularly if you are making changes to PII footprint without consent.  There may be some situations where appending data is allowed under CASL.   If you have a business relationship – e.g. purchases in the past year – then this append may be in compliance with the CASL legislation.
• Mobile Access.  No one anticipates that certain one-off situations will be covered under CASL (e.g.: a US citizen goes to a coffee shop in Toronto and checks his Gmail account).  Brown expects that the government also did not intend to the law to apply to Blackberry users worldwide when accessing email (e.g., through RIM servers located in Canada).   “I think the intention is not to apply the legislation so broadly,” he said.  It’s not clear how data centers for companies that are not Canadian based will be treated – although Brown expects that they will need to comply just as if the entire company was based in Canada. Messages sent from those centers will be “Canadian” under this law.

Many thanks to Shaun Brown and nNovation LLP for an excellent presentation and generous review of so many audience questions. nNovation LLP is a pre-eminent Canadian law firm that advises companies, industry associations and other private and public sector parties in their business relationships and practices, and in connection with a broad range of Canadian regulatory regimes. With several years of experience both in the public and private sectors, Shaun’s practice focuses on emarketing, ecommerce, privacy, and access to information.   

Thanks also to the eec's Deliverability & Compliance Roundtable, led by Matt Rausenberger of Return Path and Dennis Dayman of Eloqua, for sponsoring and organizing this event.

If you are not an Email Experience Council member, please join us for free access to these kinds of event and resources.  If you are a member and would like to join one of our member Roundtables (committees), please email Ali.


- Stephanie Miller
eec Co-Chair

To give people another way to support our efforts to convince companies, publishers and dictionaries to standardize on the sans hyphen spelling of "email," the Email Experience Council has launched a new Facebook group: I know how to spell "email."

We think this will be a fun new companion to our "Hyphens Equal Disrespect" Petition effort and allow more frequent sharing of news, successes and anti-21st century weirdness. Please join the group today and tell any of your friends that you think would agree with the value statements listed in the group's description.

—Chad White of the eec

In the 1700s, Benjamin Franklin said "Without continual growth and progress, such words as improvement, achievement, and success have no meaning." Life-altering inventions of this era included such things as the first mercury thermometer, the lightening rod, the steam engine, the submarine and even the first dictionary. As I think about it, there is not one of these inventions that we could do without today. Each of these inventions has enhanced the quality of the life we lead. We have integrated them into our daily routine. They have become engrained in our culture.

In the new millennium, digital innovations appear to be the elements that are driving us forward and literally changing the way we live our lives. Broadband, mobile devices and digital publishing have made access to content simple and quick. It has changed our expectations and opened up opportunities to share feedback about products and services with millions of people, with one click of the mouse. In a world where each one of us strives to be more aware about how the choices we are making affect the health of our planet, digital efforts offer us the ability to celebrate.

With digital innovations, we can celebrate:
● More eco-friendly alternatives;
● A closer tie to our communities, in a virtual world;
● Access to content that provides immediacy; and
●The ability to increase convenience with content on demand.

Last week the Digital Lifestyle Roundtable shared their first research (compliments of Zinio and the Harrison Group), which demonstrates the significant impact that email has in driving adoption of other digital elements. In addition to email, this webinar also demonstrated how advertisements are receiving more attention in digital magazines and building more brand awareness. Over 570 people attended this webinar. If you were unable to attend, you can still view the webinar (registration required). To sign up for the Digital Lifestyle Roundtable and participate in future research and efforts, please email jeanniey@emailexperience.org.

— Jeanniey Mullen of the eec

The Email Experience Council's "Hyphens Equal Disrespect" Petition is about more than shortening a commonly used word so you don't look antiquated, especially in the eyes of younger customers. It's about acknowledging that today's email is ubiquitous, powerful, interactive and cost-effective—and has very little in common with its Cro-Magnun, text-only ancestor, "electronic mail." Email has evolved and so has the spelling.

We're constantly amazed to the resistance we encounter when talking to publications and other folks that use the old, hyphenated spelling. Here's a great example of what we hear. In a recent "Ask AP" story on USA Today's website, Tim Bergerhofer of Kansas City, Mo., asked:

As electronic mail became widespread, it came to be referred to as "e-mail." Many users soon began to drop the hyphen (fewer keystrokes). Now, "email" is searched on Google nearly six times as much as "e-mail." Is there a plan to switch "e-mail" to "email" in an upcoming version of the AP Stylebook?

David Minthorn, AP manager for news administration, responded:

Call us stubborn, or sticklers for clarity, but AP sees no compelling reason to replace e-mail with email. Why do we stand on e-mail? That spelling is the first choice of major dictionaries, including AP's primary spelling reference, Webster's New World College Dictionary Fourth Edition. It is also the preference of many newspapers. And e-mail is consistent with other hyphenated, electronic age terms such as e-book, e-commerce, e-shopping and e-business (which would look odd without hyphens). You're not the first to propose dropping the hyphen. But the arguments of one fewer keystroke and search engine statistics don't convince us that e-mail would be enhanced by excision.

In a petition update last year, we argued that one reason to make the switch was that there were more references to "email" than "e-mail" online—with that gap only widening over the past 10 months. But when you look at search frequency, as Bergerhofer did, the gap is truly ridiculous, and growing ever larger. If this isn't spitting into the wind of consumer sentiment I don't know what is.

Given how frequent web searchers are punching in the sans-hyphen spelling, we think it incredulous that the AP can argue that they're "sticklers for clarity." Clearly there's no confusion about what "email" is.

While true to some extent, arguing that using a hyphen in "email" is consistent with other electronic age terms like "e-book" and "e-commerce" is becoming a harder argument. "Ebook" is already searched for far more often than "e-book," and "ecommerce" should permanently overtake "e-commerce" in search frequency sometime this year.

Now it's true that Webster's still spells email with a hyphen, although some dictionaries don't. But here's the thing about dictionaries: They take their cue from the media. And the media largely takes their cue from the marketplace. So join our growing list of petition supporters and banish the hyphen from your spelling of "email." And if your favorite publication is still using a hyphen, ask them why they're disrespecting the email marketing industry by using the 20th century spelling.

—Chad White of the Email Experience Council

News last week that the Shorter Oxford English Dictionary's latest edition dropped hyphens from about 1,600 words provides further proof that the time has come for marketers, publishers and dictionaries to drop the hyphen from the word email.

Show your commitment to adopting the 21st century spelling of the word email by signing our 'Hyphens Equal Disrespect' petition. So far, more than 160 people, representing companies both large and small, have signed the petition, signaling that they would spell the word sans hyphen in their emails, press releases, whitepapers and other publications. If you'd like to add your name to the list of supporters, just click here, let us know your name and the company you represent, and we'll add your name (but not your email address) to the petition. As the number of signees grows, the EEC will use this list to convince publishers to change their spelling of the word.

Reacting to the news from the Shorter OED, Rob over at the Serial Comma blog has a great examination of the email vs. e-mail debate. He also quotes Angus Stevenson, editor of the Shorter OED, as commenting to the BBC that e-mail—with the hyphen—is 'starting to look like something your grandmother might write.'

We couldn't agree more. Spelling email with a hyphen is antiquated and adds extra length to the word without adding clarity. As we pointed out in our May 8 'Hyphens Equal Disrespect' Petition Update, the majority of references to email on the web are spelled without a hyphen, proving that people aren't confused by the word sans hyphen.

Help us honor email's evolution into a ubiquitous and rich form of communication and sever its connection to its less evolved text-only ancestors by dropping the hyphen. Sign the petition today!

—Chad White

My MediaPost article last week on why it's time to spell "email" without the hyphen created a huge surge of support for our Hyphens Equal Disrespect petition—and also prompted some interesting and amusing counterarguments.

More than 100 people, representing companies both large and small, signed the petition, signaling that they would spell the word sans hyphen in their emails, press releases, whitepapers and other publications. If you'd like to add your name to the list of supporters, just click here, let us know your name and the company you represent, and we'll add your name (but not your email address) to the petition. As the number of signees grows, the EEC will use this list to convince publishers to change their spelling of the word.

In the article I argued that spelling "email" without the hyphen was not only easier and shorter, but more accurately reflected what email is today by severing its association with old fashioned mail. In response, one commenter accused the anti-hyphen crowd of being lazy—which is a great point. People are totally lazy. They crave shortcuts and simplicity. It's one of the key drivers—if not THE key driver—behind language evolution. So that's yet another reason to cast off the hyphen.

Another hyphenista said that without the hyphen "the first syllable begs to be pronounced as a schwa ('uh-mail') instead of an accented 'e.'" The English language is full of rule breakers, silent letters and other quirks that sometimes trip people up, but I can't say I've ever heard anyone mispronounce the word as "uh-mail"—or for that matter "em-ail." People are already extremely familiar with this sans hyphen spelling (as I'll prove in a minute).

This same person said: "Thankfully, 'e-mail' remains the correct spelling for no less an authority than The Chicago Manual of Style, The Associated Press Stylebook, The New York Times Manual of Style and Usage, The American Heritage College Dictionary, and Webster's New World College Dictionary, among others. It's also endorsed by such language experts as William Safire, Bill Walsh, John McIntyre and Barbara Wallraff. Shall I go on?" Sure, but it would be totally pointless. Language is not governed by autocratic "authorities" like these. It's created by the masses. Language evolution is democratic.

Roger Harris, of Sigma Xi, The Scientific Research Society, wrote in to cast his vote for democracy, saying that he supports the principle of common usage. He then decided to hold his own little election, "e-mail" versus "email," to see which spelling was more common. "Perhaps not coincidentally," he said, "we have a useful tool to determine such usage: search engines." The result from Google? Hyphenistas 1.96 billion. Anti-hyphenistas 2.01 billion.

"It seems the tide has turned," said Harris, "and, in support Chad's proposition, 'email' should become the preferred, and correct, usage."

I polled Yahoo and MSN today and found even more conclusive support: Yahoo preferred "email" 3.19 billion to 1.95 billion, while MSN preferred "email" 580 million to 170 million.

So there's already been a silent uprising in support of "email." Help us make a little noise and convince the "authorities" that hyphens are so 1990s by signing our petition.

—Chad White