Industry Committee on Nov. 7th, 2017

[Jim Eglinski, Conservative, Yellowhead, AB]

You're good with it, while Ms. Arsenault would like to see one change.

How much time do we have left? Not much?

[The Chair, Liberal, Dan Ruimy]

You've got one and a half minutes.

[Jim Eglinski, Conservative, Yellowhead, AB]

Ms. Arsenault, you deal with clients. Do you think that the clarity of CASL is adequate, or does it need changes in certain areas to make things—

[Kim Arsenault]

I don't believe it's adequate. As an agency, we do a lot of consulting, so our clients are well equipped in terms of what needs to happen to be CASL compliant, but a lot of organizations that we don't work with come to us and ask us for advice. It's way too complex. There's a lot of ambiguity. There are contradicting points in the legislation.

I think the government can do a much better job in clarifying the legislation and not leaving so much up to interpretation. I think what makes it difficult for organizations is that it's up to them to interpret the law, and it needs to be a little more black and white.

[Jim Eglinski, Conservative, Yellowhead, AB]

I think I have a few seconds left for Mr. Lewis.

[The Chair, Liberal, Dan Ruimy]

You have 30 seconds.

[Jim Eglinski, Conservative, Yellowhead, AB]

Do you think that some companies are making it overly complex, as you said, especially the larger companies? It seems that when the bigger legal branches get into it, it becomes more complex.

[Chris Lewis]

I've been very close to the law for very long, and it strikes me that complying is simpler than it appears. There are really only four operative sections in the whole thing, and the rest of it is just infrastructure underneath it.

Yes, it needs clarification, but I think a lot of people are making it more complicated than it needs to be. In some cases, I think they're doing it in order to extend their own business opportunities.

[The Chair, Liberal, Dan Ruimy]

Thank you.

We're going to move to Mr. Sheehan.

You have five minutes.

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

Thank you very much to all our presenters. It was very informative.

The first question is to Kim.

In your statements you mentioned how CASL was applicable to social media, such as Facebook and other messaging. We've heard back and forth in different testimony, and there certainly was some confusion out there: it did apply; it didn't apply. Then we did hear from the Competition Bureau that, yes, it does apply to those forms of electronic messaging.

Could you describe, in your opinion, the difference between social media messaging per CASL and email? We spent a lot of time on email, but how exactly is CASL affected in social media?

[Kim Arsenault]

What we are asked a lot is, “Are we allowed to use social media platforms like LinkedIn as a way of communicating in the B2B environment?” There is a lot of uncertainty as to whether people can use LinkedIn. The email address is conspicuously published. Does that give me six-month implied, does that give me two-year implied, and does that fall under the B2B exemption?

There are many unknowns as to how to use LinkedIn. Some organizations, instead of reaching out, are just picking up the phone and using traditional ways of prospecting and making sales. It's not efficient in today's day and age. We require more clarity on how businesses, mostly on the B2B side, can leverage social media channels like LinkedIn to properly engage in email communications. There are way too many unknowns on how to use those tools.

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

Chris, do you have a comment on the social media platforms?

[Chris Lewis]

One of the fundamental differences between social media and email is that social media is a pull—you actually have to go looking for content to do something with it—whereas email is a push. I send email to you, whereas with social media, I've gone someplace to see something.

Where the line gets is blurred is something like LinkedIn, where you've gone on the platform to maintain your professional relationships with someone else, and then someone starts sending you advertisements for something. That sounds an awful lot like push, whereas in general, little companies have their Facebook pages, their friends, their colleagues, and they write comments about the food they have and all that sort of stuff. That's very much a pull. That's not being slammed in my face. It's not requiring me to spend money that I wouldn't normally have spent to deal with it. It's purely voluntary. I have opted in by using my eyeballs on it. I've actually gone looking for it, whereas sending unrelated advertising to a LinkedIn account is a different thing. In fact, especially in the example of LinkedIn, the only thing that's really appropriate for LinkedIn is advertising for job offers.

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

Thank you.

Kim, we've heard testimony over and over again about businesses feeling it is ambiguous, because of the lack of education or the lack of communication. We did have the CRTC here to state that a lot of its questions are on the web, but it's very passive. You have to go looking for it and whatnot. Many businesses are opting out of engaging in electronic marketing, or they lawyer up, and the lawyers say, “Don't even take a risk.”

Your business is basically in the business of educating people, and helping them where the government perhaps isn't there. What advice could you give the government on how it might do a better job of educating the public?

[Kim Arsenault]

I don't think the government's website is actively updated as often as it could be, so its website is one low-hanging fruit. It could probably put out more webinars. I've joined several webinars, and sometimes the questions aren't directly answered, so even the answers to the questions are ambiguous. To Mr. Lewis's point, the government needs a bit more time and experience to fully understand digital media and how CASL is impacting the law.

A lot of the government's answers have been, “Use your interpretation and use your judgment.” That's very difficult for companies that don't want to take a lot of risk. It makes them fearful that if they interpret it in the wrong way, it can have huge impact on their business.

Again, it needs to provide more black and white, more specific examples, and fewer grey areas that are open to interpretation. It should provide more webinars and papers and it should also consult with organizations. Many organizations are fearful to go to the CRTC for fear they might raise something inadvertently with the CRTC. Many companies want to stay under the radar, so having the CRTC appear more open to conversation may help organizations.

[The Chair, Liberal, Dan Ruimy]

Thank you.

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

Those were great comments.

[The Chair, Liberal, Dan Ruimy]

Mr. Masse you have two minutes.

[Brian Masse, NDP, Windsor West, ON]

Thank you.

One of the things that we're still faced with is the repercussions. If I receive an ad in the mail, I have to pay for the recycling of it through my municipality, and I have to pay with my time. If I receive an ad on TV, it doesn't infect my TV with a virus. It's my time and my space. I can change the channel. I can turn it off.

Suppose I receive a legitimate ad that I've agreed to from PlayStation, for example. The problem is when my privacy is breached later on, which it was.

What are the real repercussions then in terms of the engagement that we have in the protection of privacy and its use? There are two things. What do you think is fair for consumers to get out of this, especially in terms of unsolicited electronic messaging and the cost to them. What do you think is fair?

The inundation of advertising is not what the communication devices were really set up for. The way that they're used now is for emergencies and a whole series of other things, as well as the common stuff. For my phone to be tied up by a virus from an unsolicited email is not only an inconvenience; it can be quite a problem because it can't function in the meantime. What do you think is fair for consumers in this relationship? I would appreciate your input on that.

[Kim Arsenault]

I agree that consumers need to be protected from some of that malicious activity. What we're seeing is that the legislation has impacted legitimate email marketers who are trying to do a really good job of sending consumers in Canada relevant offers and relevant content, and, in the B2B environment, of being thought leaders and producing really good content. Legitimate marketers want to protect their consumers as well by being engaging and relevant.

[Brian Masse, NDP, Windsor West, ON]

You call them “legitimate”. Fair enough, but what really gives them the right to basically tie up, destroy, or cause damage or privacy loss in the first place?

I understand your arguments about the CRTC needing to reach out more and so forth, but it seems to me that we have this backwards to some degree. The cost isn't borne by those sending the messages; it's borne by the people receiving them. If I'm engaged in a relationship whereby I've agreed to receive your email, or I haven't agreed, and your message ends up costing me time, money, and other things, what do you think would be fair for me as a consumer to get out of that?

[Kim Arsenault]

It's a great question—

[Brian Masse, NDP, Windsor West, ON]

It's the responsibility of those who are marketing to pay for that restitution.

[Kim Arsenault]

Absolutely. I don't think that PlayStation expected to be hacked. I believe they were trying to protect their consumer data as well as they could. The reality is that the digital world is evolving more quickly than a lot of people suspected, and there's malicious activity. Mr. Lewis could probably speak better to it than I could.

[The Chair, Liberal, Dan Ruimy]

I'm sorry. I'm going to have to cut you off. I've let it go on a little too long. You will have another seven minutes, though.