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Author Topic: How will the CASL law affect Email Service Providers  (Read 55686 times)

Calvin C

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How will the CASL law affect Email Service Providers
« on: December 09, 2013, 11:51:00 AM »

I was looking into how the new CASL law that goes into effect July 1, 2014 will affect Email Service Providers liability.
Looks like there are 2 exemptions in the CASL and one may or may not apply to ESP's:

Quoted from: http://emailskinny.com/2011/03/04/esp-liability-under-c-28/

Section 6 does not apply to a telecommunications service provider “merely because the service provider provides a telecommunications service”. This is intended to apply to ISPs. In some cases, an ESP might fall under this exemption, if they are merely providing the infrastructure necessary to send mail.

Thus, the extent to which an ESP is potentially liable would be determined on a case-by-case basis, and is a factor of the services that the ESP provides beyond merely offering infrastructure to send mail.

I’m employed by an ESP, so I can’t pretend to be a disinterested third party. I don’t take much comfort from Shaun’s assurance that an ESP’s liability is established on a case-by-case basis, particularly in the face of the very strong language he cites in pertinent part from Sections 6 & 9.

What is everyone thought regarding this?
We only allow permission-based email marketing on or servers and generally do receive complaints from time to time (most are thru FBL). Im sure we've all received threats directly from the recipients from time to time. This may give them a chance to take action againts us which worries me. We constantly handle every single manual complaint daily, but some just dont let up.

Is allowing clients/customers to import their mailing list a bad idea with this new law? Will we as an ESP be affected/liable for our customers/clients actions even if we have them sign our service agreements regarding CASL/CANSPAM..etc?

Are our customers required to double opt-in/confirmed opt-in their list? Or simply opt-in in with all opt-in info like ip, date/time stamp, URL of signup is fine? We've received complaints even on confirmation emails that was sent by our mailer. Can a Canadian file a complaint for receiving a confirmation email? What if someone knowingly subscribes a Canadian email to one of our customers lists multiple times? We cant even band these signups because the signup email user never confirmed the signup.

We've also offered free trials in the past thru signup forms which we have recently placed on hold. But would like to offer free trials in the future. But this casl law may cause a problem when these free trial signups send to a Canadian email.

Constant Contact and afew others do not allow the importing of emails into their systems according to their blog.
We are not a large ESP like them but do carry business insurance to protect ourselves (may need changes due to the CASL).

Anyway, as any company, the cost of defending from a suit can bring a company down.
I'd like to know what we can do to prevent it and the liability an ESP carries when offering a email service to their customers.

Just would like to hear everyone's thoughts on the new casl law.