Globalization affects eec members in a number of ways. Needing to manage marketing compliance rules across multiple jurisdictions is one such impact. Managing blind spots with how channel-specific rules impact cross-channel efforts is another. There is one blind spot in particular that deserves attention from retailers operating in Canada — sending shopping cart abandonment emails to Canadian customers can trigger compliance. I’m often asked, “How are abandonment emails covered under Canada’s stringent Anti-Spam Law (CASL)?” “Can I even send abandonment messages into Canada??”
But let’s back up… What is an ‘abandonment’ email and how is it ‘triggered’? Shopping cart abandonment is an automated re-engagement technique commonly used to encourage an online customer to complete an order that’s left sitting in their shopping cart.
To fully understand compliance risk in Canada and beyond we need to give equal attention to what happens before the email is sent.
Email marketing perspective:
Abandonment messages are almost always ‘commercial’. Meaning, they encourage the continuation of a commercial activity instead of providing factual information about a commercial activity — such as an e-receipt. Under CASL, marketers would need to ensure abandonment messages are not unsolicited, and that a CASL compliant consent agreement exists for the customer. Opt-out compliance obligations would also need to be considered, and this is true under CASL as under the US CAN-SPAM Act.
For more information about compliance consent record keeping, please see the recent Enforcement Advisory Notice from the Canadian Radio-television Telecommunications Commission.
Online tracking perspective:
Abandonment campaigns rely on marketers tracking customers online and tying online behavior back to the an email address. This means that email senders will need to manage compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA), which covers notice and choice obligations with online tracking.
- PIPEDA’s privacy principles: https://www.priv.gc.ca/leg_c/r_o_p_e.asp;
- PIPEDA’s definition of commercial activity, which includes remarketingt: https://www.priv.gc.ca/leg_c/interpretations_03_ca_e.asp
- Privacy Commissioner’s findings under PIPEDA in relation to remarketing: https://www.priv.gc.ca/cf-dc/2014/2014_001_0114_e.asp
- Privacy Commissioner’s guidance on online behavioral advertising, the technology of which informs triggered emails: https://www.priv.gc.ca/information/guide/2011/gl_ba_1112_e.asp
Under PIPEDA, marketers will need to (i) clearly and conspicuous inform website visitors that their online activities may result in personalized marketing, (ii) offer a way to opt-out of such tracking, and (iii) ask for individuals’ prior express consent with tracking involving sensitive personal information such as health data.
Putting it all together:
As privacy laws around the world continue to mature and absorb use-specific rules such as those covering commercial email, marketers need to start adding new vocabulary to their compliance playbooks. For example, shopping cart abandonment messages are cross-channel re-marketing campaigns triggered by online behavior. After all, CASL is just a module within Canada’s broader privacy protection regime.
Please download The eec Email Marketing Global Guide for more information about data protection regulations and anti-spam laws affecting 77 jurisdictions.
Alex Krylov, CIPP
Experian Marketing Services