• by Jordan Ayan , May 13, 2009

A bill was introduced in the Canadian Parliament at the end of April titled the Electronic Commerce Protection Act (ECPA). This new legislation is the Canadian government's attempt at stemming the tide of unsolicited messages. If you typically send true opt-in messages, you are in good shape. However, if you read the bill in its entirety, it casts light on a shade of gray that many in the email world have used to opt someone into their list who -- from the perspective of the recipient -- did not want to be included. The ECPA raises the question of what a pre-existing relationship is, and when is it okay to communicate with an individual with whom you have a pre-existing relationship?

I'm convinced that this article may raise more questions than provide answers, but hopefully it will stimulate thought and discussion around how your organization addresses this important question.

Paraphrasing the bill's language, a business relationship between the person to whom an email message is sent is considered to exist if:

1. There is a purchase or lease of a product, good, service or land within 18 months prior to the day the message is sent;

2. There is acceptance by the person to whom the message is being sent of a business, investment or gaming opportunity within the past 18 months;

3. There is a barter exchange of anything between the person to whom the message is being sent and the person sending it anytime during the past 18 months;

4. There is a written contract for anything other than what is described in the previous conditions within the past 18 months;

5. There is an inquiry or application within the six month period immediately preceding the day on which the message was sent.

The bill also defines what fair-game "non-business" relationships are, and adds to the above list anyone who donates to a charity or provides a gift, volunteers to a charity or, of course, makes a donation to a political party or candidate.

A key point in the law for this discussion is that it defines a person as an individual, partnership, corporation, organization, association, trustee, administrator, executor, liquidator of a succession, receiver or legal representative.

There are a wide variety of perspectives in the email community today regarding what defines a pre-existing relationship. Some organizations define this as a transaction that occurred at some point within the past 18-36 months. As far as I have been able to determine, however, this is the first time any government has actually defined the pre-existing relationship with a specific time frame.

While the gray area of existing business relationship is defined, what's missing is what defines a true opt-in relationship: mainly, the act of a person expressly providing their email address to an organization, with the expectation and understanding that, by providing that email address, they will receive email from the organization they are giving the address to.

You must realize, of course, that what the law says is not nearly as important as what the recipient perceives. As my colleague Justin Weiss at the Email Sender and Providers Coallition (ESPC) points out, there is law, there is practice under the law, and there is what has emerged as best practice because of the law.

As this law reads, marketers could feel that if someone hands them a business card at a trade show, they can communicate with that person for six months. They could even take it a step further, reasoning that they're free to communicate with anyone at the business card holder's organization for six months. However, this is where I would suggest it is best to ignore the law.

In the email world, what matters much more than any legislative decree is how any action you take will impact your digital reputation. Sullying your reputation will affect your future ability to get your mail delivered. Send a message to the business card holder in the above example, and all he has to do is identify your message as spam to damage your reputation. Do it enough times, and your mail is going to start being blocked.

In another example, if someone makes a purchase from you, your freedom to communicate with them may also be impacted by what you say on the order form or page when they make the purchase. Based on European law, you must disclose that you plan to use the email address in some way.

So why is it important to ignore the law? Best practices have developed in the industry because time and again they have not only been shown to keep you out of legal hot water, but also because they keep to the idea of what it means to be a reputable marketer.

Whenever you consider sending a message, think about it from the perspective of the recipient. Will they be surprised to hear from you? From a best practice perspective, no one should be surprised. It is also important to remember that email knows no borders. If a person uses a country domain (like .ca for Canada) you can tell where they reside. If not, you are shooting in the dark unless you have collected their specific geographic information.

You can deviate from best practices when it comes to deciding whom you email. But, while you may still be legal, you aren't necessarily smart.