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Hal Licino

Fuzzy FISA Muddies the Canadian Email Marketing Waters

Feb 01 2011, 01:40 PM by

Email marketers have to deal with a mind-boggling number of varying standards and regulations across international markets, and now they have to be aware of Canada's new anti-spam law, which will be coming into force this year: the Fighting Internet and Wireless Spam Act (FISA). Adopting an opt-in policy in contrast with the USA's CAN-SPAM Act, which is based on an opt-out philosophy, the new Canadian law will affect not only Canadian businesses engaging in email marketing but also individuals or companies of any nationality sending emails to Canadian prospects.

FISA specifies that all Canadian-bound email campaigns will have to comply with a number of substantive and procedural standards, including a readily available unsubscribe mechanism that must remain functional for a full 60 days. FISA also applies responsiveness rules, determining that all unsubscribes must be acted upon within 10 days.
Must Subject Lines Be Robotically Descriptive?
There are various areas where compliance with FISA becomes fuzzy, and one of them is the prohibition of “false or misleading subject lines.” The determination of the degree where a particular subject crosses the line into “misleading” falls in a legal gray area and opens email marketers to a considerable amount of liability on what could have been a fully innocent composition. No one knows at this time whether subject lines will be held to extremely strict standards where they must directly describe the content without wavering. Must an email newsletter offering a discount on shoes have as its subject line “Newsletter Including Shoe Discount” or will Canadian legislation allow some measure of creative flexibility? There are no direct specifications within the Act itself, and the limits of “misleading” may well have to await the first tests in Canadian courts.
Implied vs. Express Consent Becomes a Legislative Minefield
Another area where FISA becomes notably thorny is in its definition of what is entailed by an "implied consent." The Act specifies that if a company has a relationship with a customer proven by a transaction that has taken place in the previous two years, or an inquiry that has occurred in the last six months, then the consent is implied. These clauses open up a Pan-Canadian Pandora's Box of questions: Do customers need to make an inquiry twice a year to keep receiving the emails, or does the Act indicate that the first email of an ongoing subscription needs to start no later than six months from inquiry?
A Request to Consent Email Counts as Spam
Just when you thought the lack of clarity in Fuzzy FISA was enough to have you reach for one of those famous high alcohol Canadian beers, it gets even more complicated. If your customer does not fall into the indefinite waters of “implied consent” then “express consent” must be received. However, this “express” cannot be obtained by sending a “request to consent” email, which is prohibited under the Act! FISA’s opt-in does not allow consent of targeted customers by email in any way, which means that email marketers with Canadian customers have to get far more creative in the ways they build their prospect lists.
Violate FISA: You Lose Your House and Go to Jail
FISA provides for three levels of Draconian penalties: a right of action (lawsuit) for persons claiming loss or damage due to receiving non-compliant emails; administrative fines per occurrence in amounts up to $1 million for individuals and $10 million for corporations; and criminal (felony) offenses under Canadian law. FISA also calls for directors and officers of any non-compliant company to face personal liability for violations and criminal offenses. In short, if you authorize an email that FISA deems non-compliant, you lose your house and land in the penitentiary.

An accessory to the terrorist firebombing of a Torah School in Montreal was recently sentenced to twelve months probation. This person should thank their lucky stars they never committed the far more serious crime of sending a non-compliant Canadian email!

Posted in Tips & Resources, Email Marketing News

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