Canada’s Anti-Spam Legislation: Consent and Burden of Proof

So far in our series about Canada’s Anti-Spam Legislation (CASL) we have covered the basics and commercial electronic messages. In this post we will cover the different types of consent and the burden of proof.

Consent = Permission

There are two different types of consent that apply to CASL, express and implied. Express consent means an individual must take affirmative action to “opt-in” to your list willingly. Implied consent is when a relationship exists, but the recipient is added to your list without any affirmative action.

With both types of consent there a is “burden of proof” that is required. This means that it is your responsibility to track, record, and document the information necessary to prove that you have consent to be contacting that person. Best practices include ensuring that all records of your compliance procedures and policies are maintained, and that proof of consent is documented and tracked. This information may support a due diligence defense at a later point in time if your firm is ever called into question.

So let’s see this in action….

EXPRESS CONSENT

Jeff's Business Card

You collect someone’s business card and after meeting them send an email to confirm that you met them and they have requested more information or to be added to a list. This allows you to have the necessary information needed for the burden of proof.

Filled out form

 

Someone fills out a form on your website with the intent of being placed on your list. A confirmation email would then be sent which requires a recipient to click a link to confirm they wish to be placed on the list. When they click the link, the date/time and IP stamp should be recorded.

Phone

A person gives you their email address over the phone with the intent of being placed on your list. The same process of sending a confirmation email applies, but express consent could be proven if you recorded the conversation for each recipient.

IMPLIED CONSENT

Interest

If someone expresses interest in your business as part of the sales process or enters their email address on your website to download educational material, they are to be considered “prospects” and implied consent is given to send commercial electronic messages for a period of 6 months only.

 

 

 

 

Checkmark

If a recipient is added automatically or is required to un-check a box to opt-out during a process, this method is considered implied and not express consent under CASL. As a best practice this should be avoided anyways as it will typically generate a large volume of emails flagged as spam which negatively affects your reputation as a sender. In order for it to be express consent, a recipient must go through an opt-in mechanism, as opposed to opt-out. The end-user must take a positive action to indicate their consent.

Check back as our next post will cover the fine print of CASL and processes that can be used during the three-year transition period in case you are not going to meet the July 1st deadline!

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Leadership, Change, and Driving Innovation: Insights from the LMA Annual Conference

The LMA Annual Conference kicked off this year with an inspirational keynote speaker, Kat Cole, President, Cinnabon Inc. Kat’s presentation “The Difference – Lessons in Leadership, Change, and Driving Innovation” provided concrete leadership examples while tying them back to practical applications within firms.

During the session Kat shared her inspiration as she moved up from working as a hostess at 17 to becoming one of the youngest executives in the hospitality industry by the age of 26. Throughout the session she discussed the importance of partnerships in building brand reputation. Here are a few of the key snippets from the session:

Partnerships

  • What Makes Sense
    You should be thinking about what strategic partnerships make sense to expand your business and brand. When being approached for a partnership, you should always ask “will I be a competitor or a collaborator,” make sure it is the right fit.
  • Build Relationships
    You need to be building relationships or the competition will. Think about how you can partner with the people who can help your business grow.
  • Key Advice
    You should be looking for partnerships, not waiting for them to knock on your door or you will miss out. Lastly, no matter what, none of the above matters if you are not making a positive impact on the people around you!

Branding

  • First Things First
    You need to know how your brand got started… what got you to where you are today? Cinnabon focused on relevance and differentiation to build their global brand and firms should too! Products have to be differentiated to stand out in the market, services are no different.
  • Value
    In order to build your brand you need to deliver value to those you serve. Cinnabon’s goal is to WOW their guests. Kat listens to feedback, reads tweets, and completes searches to see what people are saying about the brand. That’s how you innovate and create new products or offerings. Lastly, don’t be afraid to reach out to your biggest critics and ask them “how can I help you?” They may become your biggest supporters!

Kat’s transparency and authenticity made her an amazing speaker at this year’s conference. The way she linked her personal and professional life experiences to practical business applications was spot on. With that, we will leave you with our final favorite advice from Kat:

The Hot Shot Rule: Think what would a hot shot do in this situation? You have to be willing to do things differently! Bring new ideas to the table and don’t be afraid of change.

Settling and just being grateful for what you have can also lead to complacence. Make sure you are always evaluating yourself and striving for excellence.

Question yourself and listen to others, make the call to make a change.

“If you don’t do it someone else will. That should be enough motivation to innovate and create.” – Kat Cole

INTERACT: If you attended the session or have seen Kat speak in the past, what were your favorite key takeaways?

Defining & Delivering Value

Yesterday during the ILTA (International Legal Technology Association) Annual Conference, we had the opportunity to attend the Defining and Delivering Value session. The session focused on a law firm client’s perspective of value. The key themes explored were: defining value, differentiating value, communicating value, and measuring value. Below is a summary:

What is a cynic but a man who knows the price of everything and the value of nothing.” – Oscar Wilde, Lady Windermere’s Fan (1892)

Defining Value
McKinsey Insights defines value as “The real essence of value revolves around the tradeoff between the benefits a customer receives… and the price he or she pays for it.”

Value = Benefits – Costs

Value based pricing is a clear and concise statement of the tangible and intangible results a customer gets from using your products or services that clearly differentiates you offer from the competitors. The three essential components are to:

  • Resonate. Clients must have a need for your service(s)
  • Substantiate. Clients must BELIEVE you can deliver
  • Differentiate. Clients must understand how you are different

Differentiating Value
Differentiate your value and your value proposition by completing the following:

  • Listen and fact-find: Who is/are your audience(s), and what are their needs?
  • Segment: Differentiate on a firm, practice/industry, and attorney level
  • Develop Options: Differentiate between options you create
  • Paths to Differentiation: Expert/reputation, trusted advisor
  • Stories: Tell stories that reinforce the differentiation

Communicating Value
Communicate your value through:

  • Differentiation
  • Branding (“walking the walk”)
  • Working from the same script (consistency)
  • Learn the client’s internal incentives and deliver

Measuring Value
Value can be consistently measured by delivering value in pricing and client relationships:

  • It’s not just about fees
  • Find your “bright spots”
  • How do you like your latte (know your clients)
  • Build a good tool box

That which is measured improves. Make sure to collect data analytics and create metrics to measure value creating the tools to move from cost-plus pricing to value pricing. Value can be a challenging concept for some and that is what differentiates successful firms. By delivering efficiency at low-cost, performance metrics, budget alignments and AFA arrangements, as well as “what if” scenarios firms will be able to meet the corporate legal department’s perspective of value.

A big thank you to the session panelists; the content was fantastic and laid the foundation for what a law firm places on value.

  • Delilah Flaum; Winston & Strawn LLP
  • Doug Woods; Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
  • John Ferko; Miles Stockbridge, P.C
  • John Thompson; Purdue Pharma LP
  • Patrick Johansen; Brinks Hofer Gilson & Lione
  • Stuart Dodds; Baker & McKenzie