Standing Up to Spam

August 12, 2011
Written by Jessica Foster
Changes are coming to the world of online marketing and e-newsletters. New legislation was passed in Canada on Dec. 15, 2010, to combat the ever-increasing levels of spam reaching e-mail inboxes, and as a result Bill C-28 will come into effect in September 2011. Garden centres will want to make sure their marketing communications methodologies are on the right side of this law. Failure to comply could cost individuals up to $1 million in fines and corporations up to $10 million dollars per infraction. The bill is 79 pages long, and it is complex. This article is not intended to provide legal advice nor a complete analysis of the Act, but rather to inform readers of the potential ramifications for their day-to-day business practices.

What is Bill C-28?
Bill C-28 is called the Fighting Internet and Wireless Spam Act (FISA). Its intended effect is to deter and prevent deceptive and damaging forms of spam and Internet practices. After long consultations with industry, organizations, legal experts and interested parties, Canada has now passed a bill that is intended to increase the reliability and trustworthiness of the digital economy for Canadians. A full copy of this bill can be viewed on Industry Canada’s website at www.ic.gc.ca .

The legislation will deal with how, when, where and why you are authorized to send commercial electronic messages. Commercial electronic messages that may affect garden centres includes e-mails, text messages, instant messages, social media messages, telephone calls, and voicemail messages that are intended to solicit business.

You may be asking yourself the following question: “As a legitimate retail business owner, how can FISA affect the day-to-day operation of my practice?”

In a nutshell, under the new rules of the FISA you are now required to obtain permission (either implied or expressed) from your potential clients before you can legally send them electronic messages about your business and services. In addition, you would be well advised to maintain records so that you are able to prove, if needed, that you have received this permission from them.

What is a commercial message?
A commercial message is a message that contains content that is intended to solicit business or commerce. FISA covers more than just the words contained in the message. It also includes commercial website page content, but only if a link to that page is included in the transmitted message.

What is permission?
As mentioned, FISA requires that you receive permission from your clients and potential clients before you communicate with them electronically about your business and services. Within the act, both “expressed” and “implied” permissions are acceptable. What is the difference between the two?

“Expressed” permission describes a situation in which clients, or potential clients, have formally “opted-in” to receive commercial messages from you. They check a box on a website registration form, or mail-in a point-of-purchase postcard requesting your communiqués. This is, by far, the strongest form of consent, as it is very clear what your clients’ intent is with respect to you marketing to them.

“Implied” permission, on the other hand, denotes consent that is not actually stated, but is inferred by another action taken by your clients. For example, when you already have an existing business relationship with customer or clients, it is implied that they expect ongoing business-related communications from you.

In addition, “implied” permission may include persons you may not even know, as long as their business and duties are relevant to your business and their contact information has been made publicly available to you. Obviously, potential clients (consumers) of a garden centre do not fit this description, but retail businesses in your area would. You could contact them and strike up a conversation intended to initiate referral services. You do, however, need to ensure that persons who publish their contact information have not also published a disclaimer along with it, stating that they do not wish to receive commercial messages.

How do I go about getting permission?
When you stop to think about this for a minute, you will quickly recognize that it can be very easy for you to obtain permission from your customers without deviating from your regular day-to-day practices. Here are just a couple of ideas you may want to consider implementing:
  • Whenever a customer completes a transaction with you, you can ask this client for permission to contact them electronically. Have a separate form available where they can check a box that simply states “I understand and agree that I may receive communications from you electronically about our exciting new products, events and related services.” Once checked, this would be an example of clients giving you “expressed” permission for you to communicate with them about your business and services.
  • An example of implied consent would be when a new client visits your website and places an online order with you, contacts you for more information or signs-up for e-mail communication. This action is inviting a business relationship with you and therefore is “implied” permission for you to communicate with them.
In both cases, there will be adequate documentation for you to provide proof of consent later, if you are ever required to do so.

Beyond permission
There are two more very important issues that FISA compliance requires and that may affect the way you presently communicate with your clients. These include, but are not limited to:
  • All the commercial message e-mail and electronic newsletters you send to your clients must contain the full name of the sender along with valid contact information. You are likely already doing this, as it is only common sense to provide your clients with a way to get back in touch with you. That said, with FISA, it is no longer an option, but a must-have.
  • All of your commercial messages must provide the recipient with a working mechanism, manual or otherwise, for them to “opt-out” of receiving any further electronic correspondence from you. It is also very important that you monitor and honour these “Unsubscribe” requests to ensure FISA compliance.

The sky is not falling
FISA in no way should reduce or hinder your legitimate business practices. So don’t panic. The core requirements of FISA are straightforward to adopt into your practice, and are not costly.

One of the results of this legislation will be the desirability for garden centres and other businesses to maintain relevant and legitimate contact with clients and potential clients. There are point-of-sale systems and e-mail programs available to retailers that will help you build your practice by engaging your clients and potential clients through professional, interactive website tools and legitimate e-mail correspondence. These systems also will help you maintain your client list and minimize the time required to legitimately correspond with your customers through mass e-mailing tools and automation – all the while maintaining FISA compliance.

While visiting your website, potential clients will gladly provide you with consent if by doing so they believe it will be beneficial to them. They will welcome the convenience of online website tools such as online ordering, e-newsletter subscriptions and gardening information, to name a few, through which they may willingly provide you with their e-mail address and consent to receive further communications from you, all well within the rules of FISA.

As mentioned at the outset of this article, the new FISA legislation will come into effect in September of 2011. Now is the time to consider its implications and put appropriate business practices in place to ensure your compliance in electronic communications.

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