Deliverability: Canada’s FISA Law

December 27, 2011 By 2 Comments

MARCOM in Ottawa

Did you know that Canada’s anti-spam laws are tougher than nearly anywhere else in the world?

If you are an email marketer, the chances are quite high that a portion of your subscriber base is located in Canada. If this is true, it’s imperative that you are aware of the new Fighting Internet Wireless Spam bill (FISA), that became effective on December 15, 2010. Since then, there has been much discussion about this new law. It goes to great lengths to define what is acceptable practice by defining what does and does not constitute permission when it comes to electronic media, including email marketing, SMS, instant messages, and social (unlike the U.S. CAN-SPAM Act, which just pertains to email marketing).

FISA is a big win for permission-based email marketing; it really complements the long-time ISP standards. If you have been following the advice of WhatCounts (as well as the rest of the email marketing community), then you are likely already in good shape, with the exception of a few housekeeping tweaks. (There will be a six to eight month window before any enforcement in order to allow businesses time to make any necessary changes.)

This law covers all Canadian recipients, but the real trick will be in trying to determine if your subscribers are located in Canada. A good start is any domain ending in .ca, which is considered to be a Canadian recipient.

Differences Between FISA & the CAN-SPAM Act

  • Provisions vs. Law.The biggest difference between the CAN-SPAM Act and FISA is that the CAN-SPAM Act only makes provisions for an opt-out mechanism, whereas FISA is a permission-based law. In other words, under CAN-SPAM, you are (by the letter of the act) allowed to send email to anyone so long as you have a working opt-out mechanism and the list isn’t harvested. Under FISA, you have to have gained “explicit consent” before you can send. Explicit consent is defined as where the recipient has given permission to receive communication from the sender. There is also the concept of implied consent that covers an existing business relationship with a subscriber where you can email them for a period of two years from when the business relationship was established. After two years, you must have gained explicit consent to continue sending them email.
  • Harsh Penalties. Another important difference between the CAN-SPAM Act and FISA is that FISA allows an individual to a right of action that allows any person to seek damages in court, not just Internet Service Providers. Penalties can be very steep; fines range up to $1 million against individuals and $10 million for businesses. These types of penalties are not aimed at legitimate marketers, but rather egregious offenders (in other words, “spammers”).
  • More Identity Required. More on the housekeeping side of things, as you all know, CAN-SPAM requires valid email header information and postal address; subject lines that accurately reflect the nature of the email; and a functional unsubscribe mechanism. FISA goes a little further in that the identity of the person sending the email needs to be identified. It requires the name and contact information of the company to be shown; an easy method of contacting the sender of the message (this is currently being interpreted to mean that the company’s phone number should be included); and, of course, an unsubscribe mechanism.

    • Again, if you are already practicing permission-based email marketing, there is not much to change other than adding some additional identity information to your creative. However, keep in mind that the most important thing here is permission – make sure you have it or gain it. If you don’t have permission, then don’t send. As mentioned above, create segmentations for all .ca domains, and then review the permission you have for all these subscribers.

    FISA is taking permission-based email marketing to a new level. Instead of permission just being “best practice”, they’ve made it the law. I would expect legislation in the very near future here in the U.S. that is modeled after FISA.

    This article was originally written by Ken Pfeiffer.

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