We were a little unclear exactly how CASL was going to impact social media messaging, does it impact at mentions? Follows? Listing? Ads? Newsfeed posts? We didn’t find the legislation exceptionally clear so we went to our friendly legal advisor for clarification and asked if he would be willing to share his thoughts with our audience as well. He was happy to oblige so here is Kim von Arx, senior legal advisor at Cognition LLP for fortune 500 technology companies and garage/basement/cardboard box start up tech companies and anything in between, and his interpretation of how CASL will impact social media messaging:
CASL and Social Media Messaging
Starting July 1st, 2014 Canada’s new Anti-Spam Legislation (CASL) will come into effect with an onslaught of pretty hefty penalties. As its very apt name implies, it is aimed at protecting our sensitive eyes and mouse from the ever growing influx of unsolicited commercial messages.
The question this raises for social media channels is: how does this impact your communication efforts with and to your hard earned followers, gawkers, lurkers, admirers, and fans?
I wish I could say, it is a simple and straightforward answer, especially a positive one. So here it goes: no worries, it is business as usual – NOT.
Well, as law goes, as you may have guessed, it is not that simple. And yes, yes, I can already hear you say: shucks, lawyers… it is always “it depends”! But, sadly that’s how new law works. If you try to enlighten yourself by, for example, cruising over to the Fast Facts section of the CASL government site, you will see, in the very first bullet point a clear prohibitive statement saying:
When the new law is in force, it will generally prohibit the: sending of commercial electronic messages without the recipient’s consent (permission), including messages to email addresses and social networking accounts, and text messages sent to a cell phone.
Well, what does that mean now? For the Sherlock Holmes among us, we would then try to dig a little deeper and eventually come across the FAQ which asks:
What is an electronic address?
The response in the FAQ is:
An electronic address is defined in CASL as being: an email account, a telephone account, an instant messaging account, and any other similar account.
Some social media accounts may constitute a ‘similar account’. Whether a “similar account” is an electronic address depends on the specific circumstances of the account in question. For example, a typical advertisement placed on a website or blog post would not be captured. In addition, whether communication using social media fits the definition of “electronic address,” must be determined on a case-by-case basis, depending upon, for example, how the specific social media platform in question functions and is used. For example, a Facebook wall post would not be captured. However, messages sent to other users using a social media messaging system (e.g., Facebook messaging and LinkedIn messaging), would qualify as sending messages to “electronic addresses.”
Websites, blogs and micro-blogging would typically not be considered to be electronic addresses.
Hah! You may think, now what?!?! I still don’t know what I can do with my Twitter followers? What about Pinterest? YouTube? Goggle+? Facebook invitations to like a post or a page – which is not the Facebook messenger? What about Reddit? And on it goes.
My response will be, Dude or Dudess, I have no clue – wait, wait, wait for it…. “It depends”! We really will have to wait and see how it evolves and is going to be interpreted in the next several months and couple of years. The first few fines and the, inevitable law suits ensuing out of those, will shed light on the interpretation of the specific applications of CASL. So, all I can say for sure is, let’s sit back and enjoy the spectacle, because a spectacle it will be.
In general, however, to give you some comfort, I honestly believe that the commercial impact on the Social Media Marketing will be relatively minor in as much as that there are, as far as I can see, possible ways around it. For example, by focusing on the “specific” targets (remember data mining. Anyone? Or you may prefer “target marketing”. But, well, it is semantics, you say tometo, I say tomato) who have already shown some interest in the widget in question by having signed up for some specific and topical Social Media Channels and that – Ms. Dudess and Mr. Dude – I would argue strenuously falls squarely within the “implied consent” provision of the CASL. And, without touting my own horn, if I argue strenuously, even pigeons hand over their breadcrumbs to simply get me to stop arguing strenuously.
Now grab a beer, coffee, pop, glass of wine, or any other beverage that hits your fancy and sit back and enjoy the ride. If you do have any questions and need assistance or, preferably from my perspective anyway, would like to graciously invite me to one or more beverages of my choice (some munchies or even a full meal would be nice too), you can always contact me at email@example.com and I will be thrilled to boggle your mind with my oratory and prosaic skills. I might even bring my own soapbox…
Kim von Arx is senior legal advisor at Cognition LLP for fortune 500 technology companies and garage/basement/cardboard box start up tech companies and anything in between. You can follow Cognition LLP on Twitter at @CognitionLLP, Like them on Facebook here, Follow them on LinkedIn here and check out their website at CognitionLLP.com.