Countdown to CASL - Do I Need to Comply?

Wednesday, June 25, 2014 Listrak 0 Comments

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It has come to our attention that some U.S.retailers believe that they cannot be touched by the Canadian government for CASL violations. Today, Chief Privacy Officer James Koons shares why this is definitely not the case: 
With the new Canadian Anti-SPAM Legislation going into effect in just a few short days, the question arises:  Do I have to comply with CASL if I am in the US? Why should a business in New York or San Francisco comply with legislation enacted by Canada?  Do they have any jurisdiction here in the United States?  Are they really going to come after me?
Canada’s new Anti-SPAM Legislation was designed to capture as many spammers as possible. The drafters of the legislation seek to achieve this wide sweep by including language in the law that specifically states that if any part of the transaction or communication in question occurs in Canada, the law applies.
  • Your email servers are located in Canada? The law applies.
  • Your recipients are located in Canada, even if temporarily (the recipient does not have to be Canadian)? The law applies.
  • Your recipient is using a credit card issued by a Canadian bank to buy a product or service from you? The law applies.
So, will a fine issued by the Canadian government or a lawsuit judgment under CASL be enforced by the courts in the United States?
The enforcement of fines and judgments across borders can be a very complicated matter. In general, private lawsuit judgments obtained in Canada can be enforced in the United States through the Uniform Foreign Money-Judgments Recognition Act. For government fines, Canada and the United States have a number of treaties allocating the enforcement of legal rulings, although it is not clear at this time which approach will be taken with the enforcement of CASL violations. There are defenses that can be asserted in each situation to challenge the judgments or fines. Whether any of these defenses will prevail is something that will only be determined through years of litigation and many hundreds of thousands of dollars in legal fees.
Does this mean you can ignore the CASL? Certainly not.  If your business is fined or sued under the legislation, the first step of enforcement will be to move for a court order barring your business from appearing online in Canada. Orders will then be issued to Google, Bing, Yahoo and other search engines to exclude you from their Canadian rankings, which may result in your site being de-indexed in the United States as well. The same process will occur with social media platforms.
At this point, the enforcement process moves to the United States court system. Litigation will be instituted in an effort to have the judgments or fines enforced. If the case is lost and the judgments/fines are enforced against your business in the United States, the amounts in question must be paid. In many cases, this will effectively bankrupt the defendant in question due to the massive administrative monetary penalties of up to $10 million per violation.
In addition, the government actions under CASL are considered criminal in nature. The penalty is not jail time. Instead, the protective shields of corporations and limited liability companies will be automatically pierced and the owners, officers, directors and employees of the business in question will be held personally liable for the CASL violations.
So in short, yes, it is a very good idea to comply with CASL.
Please visit Listrak’s CASL Resource Center at www.listrak.com/CASLfor more information on the legislation as well as many valuable resources to assist with compliance efforts. The Listrak Deliverability, Privacy and Compliance team is also available to answer any questions you may have at privacy@listrak.com.

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Timely Advice from Chief Privacy Officer James Koons: Don’t Risk Your List

Monday, June 23, 2014 Listrak 0 Comments

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July 1 is quickly nearing and inquires about becoming CASL-compliant are mounting. In today’s Privacy and Deliverability post, Listrak Chief Privacy Officer James Koons shares some very valuable advice on what you should - and shouldn’t - be doing right now:
 As we head into “CASL Week,” it is important to remember that you don’t need to stop sending emails after July 1, 2014.  If you’ve already been mailing to your contacts for a while and you have a pre-existing relationship with them that predates July 1, 2014, then you are deemed to have implied consent for the next three years.  This means you can continue sending to these recipients until July 1, 2017.  Even Industry Canada chimed in via Twitter: https://twitter.com/industrycanada/status/479373037893332992.
During this three-year transitional period, you have plenty of time to move your existing subscribers from implied consent to explicit consent.  Why do this?  Well, for one, implied consent will expire under the provisions of CASL.  As I indicated, those recipients which fall into the transitional provision are deemed to have implied consent until July 1, 2017.  Any new subscribers after July 1, 2014 for which you only have implied consent, this will expire after two years.  Aside from the expiration of implied consent, express consent is clearly and unmistakably stated.  It requires an affirmative action from the recipient and is generally considered a best practice when it comes to solid email deliverability.
It’s best to slowly start converting subscribers for which you have implied consent to explicit consent.  You don’t want to scare off your subscribers with last minute attempts to collect their consent.  And it’s really easy to collect explicit or express consent.  An individual has to physically check a box or click a link to opt-in for future communications.  This gives you the ability to communicate with them until they unsubscribe – express consent does not expire under CASL.  In your request for express consent you must state your purpose, your name and contact information, and indicate that consent can be withdrawn at any time.  There are some great examples provided by the Canadian Radio-television and Telecommunications Commission in Bulletin CRTC 2012-549 found here:  http://www.crtc.gc.ca/eng/archive/2012/2012-549.htm.
So – DON’T RISK YOUR LIST!  Trying to desperately get express consent from all your existing subscribers prior to next Monday is for sure going to scare off a good bit of your recipients.  We’ve seen this type of behavior before with similar types of campaigns.  A frantic re-confirmation campaign might get about 10% of your subscribers to act and consent, the rest will not – and you’re going to lose them.  I only recommend doing this with subscribers for which you do not have verifiable implied consent, not your whole list.
For more information on the new Canadian Anti-SPAM Legislation as well as tips, tricks and compliance guides, visit the Listrak CASL Resource Center at:  http://www.listrak.com/CASL.

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Leverage Your Email List with Facebook Custom Audiences

Tuesday, June 10, 2014 Listrak 0 Comments

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When Shop.org recently asked Listrak CEO Ross Kramer to share a top tip retailers can use to make the most of Father’s Day, he responded, “Retailers should leverage their email subscriber lists using Facebook Custom Audiences. Say you’re promoting Father’s Day gifts to the busy mother buying Dad a gift from the kids. In addition to sending your Father’s Day emails, upload your email list to Facebook and allow Facebook Custom Audiences to further shape it so you can retarget a particular segment – for example, females ages 25-45 – with a Father’s Day ad.” 
Today, Econsultancy shares details in this blog post: 
by Jeff Rajeck
Email is great way to keep in touch with your customers, but it has its limitations.
With Facebook Custom Audiences, you can take advatage of your mailing list and avoid some common email problems.
So, we all love email. For one, everyone already has it and knows how to use it. Also, when they are reading emails, customers are typically only a click away from doing what you want them to do.
And best of all, your email list belongs to you and no one else can target that exact group.
But emails do have their limitations:
  • Many are not opened, much less read. No matter how clever you make your subject line.
  • Your message may not appear as intended. Outlook, for one, blocks all images and responsive is hard to do, generally.
  • Also, emails are not generally shared. Sure, they can be forwarded - but rarely are.
  • And, finally, they all have the dreaded unsubscribe link at the bottom. Every email is an invitation for your customers to tell you that they don’t love you any more.
And, just to add to that anxiety, a study by Epilson reports that the main reason for unsubscribes was that the emails were irrelevant. So there is an increasing possibility you’re going to lose people with every mass email.
So what’s a marketer to do when the business is clamoring to send more email to your list?

The alternative: Facebook Custom Audiences


Well, thankfully now there is an alternative. You can put your email list to work for you with none of the downsides with one simple trick: Facebook Custom Audiences.
Late last year, Facebook rolled out Custom Audiences to everyone and the new functionality gives your email list a whole new lease on life.  
No longer are email addresses only for email, they are also your gateway to effective advertising on Facebook.

So, what are Custom Audiences?


‘Audience’ is the term Facebook uses for a group of people you can target with your advertising. 
For example, here are other Audiences you can target via Facebook:
  • Everyone in Singapore.
  • People who are in their final year of university.
  • Females aged 30-35 who like cars.
So when it is turned into a Custom Audience, your email list can be used in the same way as an advertising demographic.  You can create a Facebook ad and promote it to people who are on your email list, i.e. your Custom Audience.

How do Custom Audiences work?


You upload your emails into Facebook and Facebook finds the users who are associated with those emails. Then Facebook puts those users into a group which only you have access to.
Note that Facebook does not tell you what Facebook user matches what email. They just assemble all of the users into a group and tell you how many there are in the Audience.

How do you make a Custom Audience?


  1. First off, prepare your email list as a CSV or text file with one email per line.
  2. Then, in Facebook, go to Ads Manager and click on Audiences.
  3. At the top right, click on 'Create Audience’  and select 'Custom Audience.’
  1. Select Data File Custom Audience.
  1. Name and describe your Audience and select Data Type 'Emails.“
  1. Choose the file you made earlier and upload your emails.
  2. Agree to the terms, and click on ‘Create Audience’.
And that’s it - you will soon have your Custom Audience ready to use in your Facebook advertising account.
Facebook can take some time to create Audiences, but for Custom Audiences they are normally finished within minutes.

How do I use a Custom Audience?


Once the Audience is ready, you can access it using the Facebook Advertising Tool as you would any demographic.  Facebook will complain if your audience is under 1,000 people, but still lets you launch your campaign.

And why would I go through all of this work to create a Custom Audience?


Well let’s look at the problems we have with email:
EmailCustom AudiencesMany emails are not opened, much less read. Facebook ads appear automatically in your Audience’s News Feed.  No 'open’ required.Your message may not appear as intended.Facebook gives you guidance for how to create ads which look great on every platform.Emails are not generally shared.Facebook ads are shared all of the time.  People will type in the name of their friend who may need your product or service andthey get notified to click on the ad.  How great is that?Subscribers become unsubscribers.You can’t 'unsubscribe’ from the first Facebook ad - though they can from subsequent ones, so don’t be annoying

Some best practices


There are many ways you can use Custom Audiences and many things to avoid depending on your business.
One universally good idea is to create an audience periodically and use it for testing.  So, when you are asked to send out an email which is not crucial information for your customers, you can gauge reaction on Facebook first.  
Is it getting clicks, likes, and shares?  If not, then you may want revisit the headline, the message, and the visual to see how you can make it more relevant for your email list.  That way, you’re not risking losing them forever by sending out something uncompelling and irrelevant.

TL; DR


With Facebook Custom Audiences, you can import your list of email subscribers into Facebook and, with advertising, guarantee timely message delivery, display quality, shareability - and no unsubscribes.
It’s a great way to test out messages without facing the risk of losing your subscribers through sending too many or irrelevant messages.

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