The Born Freelancer on Canadian Anti-Spam Legislation — Part 2
This series of posts by the Born Freelancer shares personal experiences and thoughts on issues relevant to freelancers. Have something to add to the conversation? Your input is welcome in the comments.
Several months ago I wrote about the new Canadian Anti-Spam Legislation, known as CASL, with which every freelancer who uses email or social media to communicate with clients or potential clients should be aware. Its penalties are severe enough to make anyone affected think twice about ignoring it; its language convoluted enough to make anyone in the highly paid legal profession jump for joy.
So here we are barely a month into its implementation and already there are problems. No surprise! Such unwieldy, gargantuan and ultimately draconian legislation (however well intended) seemed inevitably predestined for prolonged teething difficulties.
Today I thought I’d look at two specific instances that have come to my attention as relevant to all freelancers. I have had to anonymize some details in order to protect all identities involved. I hope by sharing them I can help you prepare better for possible problems you too may encounter down the road as a result of CASL.
Case #1: A single complaint
This freelancer has a healthy client base which they have successfully updated and revised according to the CASL. All clients were asked to give their OK to continue receiving electronic communications. Those who declined or simply did not reply were deleted.
To the freelancer’s surprise a single complaint was lodged with their ISP from a capricious client. The ISP reported it to the freelancer and told them they could have their service terminated unless there was a satisfactory response from them. Talk about overreacting! To a freelancer relying on the internet for their business this is like being told they could have their oxygen supply cut off.
The freelancer immediately responded that they had done everything they could to comply with CASL in full:
* They had recorded documentation that the complaining client had not only agreed to continue receiving electronic communications but had been a long standing satisfied client (to that time).
* All electronic communications sent and received were always related directly to relevant matters of mutually acknowledged interest/relevance with the complaining client.
* The freelancer had always offered an easy opt-out which the client could have taken advantage of at any time.
* The freelancer was known to the client and could have been contacted directly if there had been any question of suitability of electronic communications.
What had the freelancer done wrong?
Answer: Nothing. And still they were being threatened by their ISP with banishment based upon a single unverified complaint.
Welcome to the brave new world under CASL regulations wherein it seems you are judged to be guilty until proved innocent.
Given the vast majority of real spam comes from outside of Canada (I’ve read figures like 98%) CASL can at best only impact a tiny minority of cases. But ISPs and the like are so terrified of the possible penalties under the untested byzantine CASL regs that some (as in the case I’ve referenced) seem prepared to pass along the hot potato directly to the freelancer without any attempt to verify the accusations.
So what happened?
The freelancer immediately responded to their ISP. The ISP accepted their evidence and told them the case was closed but that they were now on a “watch list”. In other words, if any other complaints were received they could still be shut down.
What sort of justice is that?
You do nothing wrong and you’re told you got away with it this time but if it happens again you’re toast.
Needless to say the freelancer now lives in a state of bewilderment and uncertainty. Bewilderment because they feel they are being presumed guilty despite fully complying with the new legislation. Uncertainty because they now live in ongoing fear of another unjustified complaint shutting down their internet connection.
And why did the client complain in the first place?
The freelancer has no idea. Their ISP advised them not to contact the client and they followed that advice, afraid that if they didn’t and their actions were revealed to the ISP that that might be grounds for termination of service. And now the kicker: After making life miserable for the freelancer (intentionally or otherwise) the very same client signed up again for their mailing list. Go figure.
So the complaining client was having a bad day. Or else they had taken temporary umbrage at something the freelancer had said or written in the dim, dark past. Who knows? It would’ve been so much easier just to unsubscribe in the first place. No, it took a whole lot more effort to contact the freelancer’s ISP and register a complaint under CASL. They had to look up their ISP for starters. In my opinion they were being malicious. Why? Because under CASL, it seems you can be.
Case #2: Blaster b.s.
This freelancer uses an email blaster for their electronic communications with their list of clients which numbers into the thousands. An email blaster is a third party system or service which handles all the work of managing and sending out such large numbers of emails.
So the freelancer fully complies with CASL, asking all their clients to confirm that receiving electronic communications from them is still OK. Given their large number of clients, not surprisingly a certain number of clients chose to unsubscribe. Perhaps they had moved or changed jobs or were no longer interested in receiving emails for whatever reason.
This freelancer was happy to do all this for not only did it comply with CASL regs but it also meant that their electronic communications were going to clients who would truly appreciate receiving them.
What could go wrong with that?
Plenty.
Because the freelancer’s mailing list had been built up over many years there were a lot of old email addresses that needed pruning. Not a lot but apparently enough above their tolerance threshold (inexplicably less than three percent) that the email blaster service deemed acceptable.
So they suspended the freelancer’s account.
Talk about overreacting.
This was bad. If you rely on an email blaster it is your primary conduit to your clients.
What had this freelancer done wrong?
The email blaster was accusing them of sending out spam based upon their number of “unsubscribes”. Their so-called logic was this: unsubscribers equals spammer. This is logical? Again, the freelancer was found guilty until proven innocent. The consequences in this case were immediate and potentially harmful to their livelihood.
Under CASL, some email blasters must be feeling very self-conscious about their role in actual spamming and worried about being found complicit and therefore liable.
So when a freelancer with legit emails and legit reasons to send them out complies with CASL and updates and revises their mailing list and ends up with a certain number of unsubscribers as a result, it seems that they can be labeled as spammers and their blaster accounts suspended.
Welcome to 2014.
What happened?
This freelancer was able to explain their situation and eventually had their account returned to active status. However, they are now on some Orwellian watch list by their blaster which could in future still terminate their account at any time if (in their opinion) too many “unsubscribes” (for whatever reason) occur again.
So the freelancer is being penalized for simply updating their mailing list as required by the new law. Quite possibly as a result of CASL, the email blaster in this case was prepared to treat them as guilty until proven innocent. And even when proven completely innocent they continue to be treated as if they are going to be proven guilty – eventually.
Real spammers are next to impossible to find. The vast majority are not in this country. They hide behind layers and layers of fake companies, bogus identities and a myriad of registrars and relay servers, each willing to deny responsibility and prepared to pass along the hot potato to the next as quickly as possible. Legitimate users of electronic communications who (under CASL) disclose their identity are by that action alone less likely to be actual spammers, wouldn’t you think?
The takeaway
CASL lumps too many different types of unlawful electronic behaviour together using vague and impenetrably dense language with the result that nobody is quite sure of anything. But the possible penalties are so onerous that a general sense of panic is starting to prevail. Rather than accept any possible liability, it seems some ISPs and some email blasters (to begin with) may be prepared to overreact and sacrifice their legitimate clients in order to avoid possible prosecution themselves. This is just the beginning. As the months go by, I predict you will hear of more and more such cases. (I already have.)
What can you do?
I repeat the advice I gave in my previous post on the subject: Adhere to CASL to the very best of your ability. Document everything. Get everything in writing. Don’t presume anything. During the next few years there will be much testing of the CASL regs. You don’t want to end up as a test case.
But even if you do everything right, freelancers are increasingly likely to get caught up in, and possibly harmed by, the complexity of the legislation as larger players (ISPs, mail blasters, etc.) irrationally overreact in their attempts to understand it.
So stay calm and be brave.
It could get worse, possibly much worse, before it gets better.
