The business opposition to Canada’s anti-spam legislation has added an unlikely supporter: the Canadian Recording Industry Association, now known as Music Canada. The organization has launched an advocacy campaign against the law, claiming that it “will particularly hurt indie labels, start-ups, and bands struggling to build a base and a career.” Music Canada is urging people to tweet at Canadian Heritage Minister James Moore to ask him to help bands who it says will suffer from anti-spam legislation.
Yet Music Canada’s specific examples mislead its members about the impact of the legislation. The organization offers seven examples posted below in italics (my comments immediately follow):
Bands and labels will struggle to build fan bases.
This is just rhetoric. It isn’t a specific example and doesn’t explain how the legislation will do this.
Social media may be hampered, and you may have to unsubscribe fanbases – because you can’t confirm whether they continue to want to receive electronic updates. If you have electronic newsletters or mailing lists, you may need to remove recipients, because you no longer have consent to send them, and you’re prevented from seeking consent electronically.
Social media based on consent won’t be hampered as the law permits this form of marketing with consent. It is true that email marketing lists will shift to opt-in, but the existing lists mentioned by Music Canada are valid for three years after the law takes effect (meaning they will likely remain valid until 2017). Contrary to what Music Canada says, the law does not restrict using electronic consent to update those existing lists during that time period.
An independent label wouldn’t be able to “cold call” a venue through email or other electronic communication to recommend they have a concert featuring one of their artists. Bands would face similar limitations to self promotion.
There are several exceptions that allow for this form of marketing. Venues that place email contact information on their websites without a notice barring unsolicited commercial email can be sent relevant electronic communications by labels or bands. Moreover, third party referrals of bands will qualify for an exception, labels or bands with a prior business relationship with a venue can use the business-to-business exception, and labels or bands with personal relationships can use those to send commercial emails to venues. This covers the vast majority of these communications, but if Music Canada is saying that spamming venues in the rare situations not covered by an exception is a key marketing strategy, perhaps it is time for a new strategy.
Your digital distribution of such things as music, videos, and e-zines delivered by email or instant messaging may trigger the legislation, especially if they contain links to additional corporate information like your website or logo.
So what? As long as you have consent, there is no concern. In other circumstances (distribution to radio stations, etc.), the communications are covered by exceptions.
Social media campaigns may be crippled. Express consent will be required before forwarding communications to neighbours, schoolmates, acquaintances, colleagues, and certain extended family members.
Untrue. Social media campaigns based on consent are not blocked by the law. Moreover, there is an exception for personal relationships that would likely exempt the need for express consent for neighbours, schoolmates, acquaintances, colleagues, and certain extended family members.
You may need to invest in expensive processes to comply with the new across the board
requirements for express consents, disclosures, and unsubscribe formalities.
Privacy law already requires organizations that collect, use, and disclose personal information to maintain processes that respect opt-out requests. Surely Music Canada is not suggesting that its members breach current privacy laws by failing to invest in the systems needed to properly track the personal information they collect along with opt-out requests.
You may also need to make substantial investments in new tracking and compliance systems or face the threat of class action law suits from the expected CASL litigation trolls under the new private right of action.
As noted above, compliance with current privacy law requires systems to respect opt-out requests. With respect to the threat of lawsuits, there is a certain irony that the industry that introduced lawsuits against individuals for file sharing (CRIA members first commenced such actions in 2004) and brought us the Sony Rootkit debacle is now concerned with lawsuits against its own members for failing to abide by an anti-spam and spyware law.