Globalization affects online retailers in different ways. One compliance blind spot that doesn’t get a lot of attention has to do with sending ‘shopping cart abandonment’ emails into Canada. (Or into the European Union for that matter.) I’m often asked, how exactly are abandonment emails covered under Canada’s stringent Anti-Spam Law (“CASL”)? Can I even send abandonment emails there? This is one of those areas where marketers can easily miss the forest for the trees and create risk for their company.
But let’s back up a bit… ‘Abandon cart’ is an email re-engagement technique that tries to influence an online shopper to complete an abandoned order. They bailed in the heat of the moment and you want to get them back! You set up your website analytics, drop session and tracking cookies, tie the cookie to the shopper’s email address, and create rules to automatically trigger an email when they jump overboard.
To answer the Canada compliance question fully we need to give equal attention to what happens before the email is sent. And we need to be clear about what abandonment messages really are – – cross-channel remarketing campaigns triggered by a consumer’s online behavior.
Email marketing perspective:
Abandonment messages fall into a gray area but are almost always ‘commercial’. That is, they encourage the continuation of a commercial activity instead of providing factual information about the activity. 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.
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: http://www.priv.gc.ca/leg_c/r_o_p_e.asp;
- PIPEDA’s definition of commercial activity, which includes remarketingt: http://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.
Ultimately, Canada-facing marketers need to treat abandoned cart campaigns as cross-channels exercises — they must try their best to satisfy all seven Privacy Principles, of which CASL is but a subset.