American marketers may think they have it tough with the CAN-SPAM Act of 2003.

But maybe they should look to their northern neighbors.

On July 1, Canada's own anti-spam act became law. Canada's anti-spam legislation (CASL) puts marketing credibility to the test with a focus on opt-in for those receiving electronic marketing messages -- versus the "unsubscribe," opt-out nature of its American counterpart.

Sending out a commercial electronic message to a Canadian audience or from a Canadian entity? Then you must comply with three requirements: obtain consent, provide identification information and provide an unsubscribe mechanism.

It's like America's law on steroids.

Opt-In vs. Opt-Out

"The most important takeaway is that CASL is an opt-in law, requiring proof of opt-in," said Robert Consoli, director of deliverability & provisioning at email marketing provider Silverpop. "In contrast, CAN-SPAM is opt-out focused, mainly requiring the ability to opt-out anyone who chooses to no longer receive your emails."

Is opt-in becoming more common anyway? Consoli says so.

"While the law requires proof of opt-in only for recipients residing in Canada, most of the world has begun moving to an opt-in versus opt-out law," he told CMSWire. "Silverpop’s recommendation would be to adhere to the most restrictive law to avoid any chance of non-compliance."

digital marketing, Digital Marketing in this Country? Your Recipients Must Opt-In

Courtesy of Silverpop. 

Ian Michiels, principal and managing director for Gleanster Research, doesn't see spam laws in general as a problem for marketers who keep things clean.

"As spam laws continue to evolve and become more restrictive," Michiels told CMSWire, "they are really only a problem for the companies that abuse email marketing practices. When we look at our survey data about 89 percent of brands still send email communications to non opt-in recipients. Top performers, however, use segmentation and targeting practices to maximize the relevance of those communications. It's spam, and it's intrusive if the communication isn't relevant for the recipient."

That said, Michiels acknowledged Canada's law regarding spam is "very different" from America's because of the Canadian opt-in provision. Canada is giving those needing to comply a three-year transition period.

"I think ultimately this will lead to very engaged and loyal Canadian customers," Michiels said. "It may also lead to a shift in opt-in practices to encourage or even reward customers for opting-in."

Lessons from Down Under

Guess who also has tough anti-spam legislation? Australia.

"Australia has had strong anti-spam legislation for many years," said Australia-based Steve Wilson, vice president and principal analyst for Constellation Research. "It's not readily enforced especially for overseas mailers but it has produced high awareness amongst Australian-based direct marketers and companies in general. Conference organizers for example are very conscious of it and tend to treat consent to receive marketing seriously." 

Learning Opportunities

Australia's law basically says, Wilson added, that you must not send email to someone if:

  • You don't have an existing business relationship in which the person would reasonably expect to receive marketing material
  • The person has not consented to receive email

"Personally I know if I get unsolicited email, and I reply with a query about why am I getting spammed, I usually get a prompt, apologetic and conciliatory response," Wilson said. "In Australia, at least, we know that cyber laws are problematic in terms of enforcement but nevertheless we value them for contributing to behavior change."

What To Do?

What should marketers do to ensure their emails don't go to spam -- and, of course, avoid fines from an international or their own government?

Silverpop's Consoli cited "recipient engagement" as one of the most important factors to consider when sending email. It's a term given, he said, to the relationship senders establish with their recipients.  

"The more engaged a recipient is with a sender, the more likely ISPs and inbox providers will deliver messages to the inbox," Consoli said. "Many large ISPs and inbox providers will use key metrics like opens, clicks, replies, etc. to build a positive reputation for senders to their recipients. Said another way, the more recipients open, click, reply and engage with an email, the more likely they will be to continue to receive messages from the sender in their inbox." 

One-to-one relationships win, he said, because if a recipient is engaged with a sender, "it’s more likely emails will be delivered for that recipient to their inbox."

"While a sender may establish a good reputation/engagement with one recipient," Consoli said, "that does not mean that all messages from that sender will be delivered to the inbox for all recipients. Proper delivery and ensuring your messages will not be delivered to the bulk or spam folder means building and maintaining a good relationship/engagement with all recipients on your list/database."

Focus, Consoli said, on the active and avoid the inactive.  

"When recipients become inactive/disengaged try re-engagement campaigns to win them back," he added. "But if after trying they continue to be disengaged, let them go. Holding on to disengaged recipients for too long will negatively impact your overall brand reputation."

Title image by Sergei Bachlakov (Shutterstock).