Funny About Buying All This Spam for the Hurricane
Canadian Antispam Law Whips Up a Storm of Last-Minute Messages
OTTAWA — The email has all the markings of malicious spam: an overwrought subject line screaming "Urgent Action Required," a message directing the recipient to click a mysterious link.
But this isn't a mortgage rip-off, weight-loss scam or sexual enhancement offer. This is the antispam email.
In recent weeks, Canadians have been inundated with emails from retailers, manufacturers, nonprofits, even government agencies — all rushing to verify that people actually want their accounts flooded with deals, discounts, announcements or anything with a whiff of commerciality, useful or otherwise.
It is the unintended byproduct of a new Canadian law designed to declutter inboxes.
Under a new antispam law that went into effect on Tuesday, the sender of any commercial electronic message — emails, texts and potentially some social media postings — must first verify that they have the recipient's consent. The regulator, the Canadian Radio-Television and Telecommunications Commission, also says the rules apply to senders in the United States or anywhere else who want to communicate virtually with Canadians.
Consent comes in two flavors: implied or express.
A company can assume consent if they have an existing relationship with the consumer — say, if the person bought a product in the last two years. That has made it relatively easy for many big, established companies like Ikea and L. L. Bean that have extensive software systems documenting every purchase and online interaction.
But the process has been a bit more complicated for smaller businesses, charities or other companies with less-than-detailed record keeping. Hence the deluge of emails to get a consumer's express consent.
While the rules have generally been welcomed by consumer advocates, some lawyers and others argue that the regulation is excessively complex. They say the rules the will hamper the ability of Canadian companies and charities to promote their products and their services — and will ultimately do little to stem the inbox arrivals of true spam operations.
"The impact on every Canadian business, every Canadian organization that sends commercial messages to Canadians is more severe than the problem it is solving," said Martin P. J. Kratz, a lawyer who heads the intellectual property practice at Bennett Jones, a large Canadian law firm.
Like most Canadians, Brad Hains never imagined the rules would affect the 1,200 email addresses he keeps as a volunteer director of an annual bicycle race in the village of Terra Cotta, Ontario. "I didn't think for a minute that they would be concerned about us," Mr. Hains said from his home in Caledon East, Ontario, near Toronto. "It's caused a lot of extra work and it will limit our ability to market the race."
Until recently, Mr. Hains said, his email list was cobbled together in a haphazard way. While most of the names were those of race entrants, he had no way to distinguish people who raced in his event in the last two years. Other names had come from local bike shops, he added, "and just people we know in the cycling community." In the end, he said, sending out an email plea seemed the only sure way to document consent.
Less than a week before the law went into effect, just 147 people of the 1,200 on his list had agreed to stay. While Mr. Hains said that he liked the idea of curbing spam, he also said that "the pendulum has swung too far — they probably didn't use common sense to put us through this."
Mr. Hains's low success rate is typical. Antoine Aylwin, a lawyer specializing in privacy law at Fasken Martineau DuMoulin in Montreal, says only about 20 percent of people are likely to agree to continue receiving emails, potentially eroding the value of email lists as marketing assets.
Some companies, big and small, are dangling possible prizes to encourage people to opt in. The prizes range from the modest, like wireless web cameras from D-Link, to a Mustang offered by the Ford Motor Company of Canada. While Michelle Lee-Gracey, a spokeswoman for Ford Canada, did not provide figures, she said that "with the chance to win an all-new 2015 Mustang and a receptive customer base, opt-in rates have exceeded expectations."
Zoomphoto, which photographs amateur athletes at a variety of events across Canada and then sells the photos through email solicitations, is offering an iPad Mini in an effort to maintain its email list of about 500,000 names. "Our business is 100 percent based on email marketing," said Joe Elliott, chief of Zoomphoto, which is based in Ottawa.
All of the company's email addresses were initially given to race organizers, not Zoomphoto, making consent murky. In addition to sending consent emails, which Mr. Elliott delayed until this month in the hope that they would seem less like spam, Zoomphoto has had to alter its customer relations software, hire lawyers and work with race organizers to obtain explicit consent in the future.
The cost of not complying can be high. Under the new law, sending a single commercial email without permission could result in fines of up to 1 million Canadian dollars (about $940,000) for individuals, and up to 10 million Canadian dollars for companies.
Regulatory enforcement will be gradually phased in over the next three years. At the end of that period, it will also be possible for individuals and class-action groups to sue companies, organizations and their directors for sending spam.
How the Canadian regulator will extend its powers to the United States or elsewhere is unclear. Betsy Broder, counsel for international consumer protection at the Federal Trade Commission, said that while the agency would help Canada obtain subpoenas and other court orders for its investigations, it would not enforce Canadian judgments against American spammers. The Canadian regulator has said that it hopes to form joint investigations with its counterparts in other countries.
Complying has not been a major burden for every organization. Madeleine Löwenborg-Frick, a spokeswoman for Ikea Canada, the furniture company, said Ikea had always required consent for any emails it sends, making the emailed pleadings unnecessary.
Carolyn Beem, a spokeswoman for L. L. Bean, which has a large customer base in Canada, said the company was able to determine which Canadian names on its email list belonged to people who had made purchases over the last two years, allowing it to prepare consent emails only for the remainder.
And even some Canadians working in online marketing, like Hana Abaza, the director of marketing at Uberflip, a Toronto-based web presentation company, say they are pleased that the law will eventually reduce the flow of messages they receive.
"I can't say I'm opting into everything," she said. "It's a great way to clean up my spam folder."
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Source: https://www.nytimes.com/2014/07/02/technology/canadian-spam-law-whips-up-a-storm-of-emails.html
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