Last month, I received a Facebook message from the owner of a start-up IT services provider. For the sake of this article, I’ll change his name to Ryan.
Ryan is about 23 years old, is a graduate of Western University, has completed Western University’s Propel (an on-campus incubator for start-up companies), and is a proud new member of the London Chamber of Commerce.
Ryan is a young, aspiring entrepreneur and, in many ways, embodies the future of Canada’s economy. He’s apt to learn, asks questions, and is trying to put himself in the right situations to succeed.
On occasion, I’ve assisted Ryan when he’s asked for help. I want to see him do well—perhaps I see in Ryan a version of myself from about 10 years ago, when I was getting more involved in entrepreneurship. I know tbk Creative wouldn’t be where it is now without the help from mentors along the way, business leaders who gave more to me than I could give to them at the time.
The statistics are against Ryan. According to a Statistics Canada report, 90% of start-ups fail within the first five years. It probably hasn’t been studied enough, but this statistic must be higher for an entrepreneur who’s starting a business for the first time rather than an entrepreneur who’s on their third or seventh round.
About a month ago, in an effort to help, I referred Ryan’s company to a successful potential business client (the owner’s name and company name have been masked for this article too) whose owner had previously told me they needed IT services and had asked me if I knew anyone who could help.
Below is the Facebook Messenger message Ryan sent to me:
“Do you mind giving me a bit of advice?
I am wondering how I might be able to better connect with busy people. It seems like some business owners have too much on their plate, and they don’t have the time to talk with me.
For instance, Mark @ Robinson Homes.
How can i [sic] be of help to them if I can’t spend much time talking to them?”
My eyes lit up when I read this message and I straightened up in my seat. Naturally, Ryan was newer at business development, and his status, which may currently be described as neophyte, was appearing in his line of questioning.
Anyone who’s been around sales in a business to business (B2B) environment for some time knows that a business owner who doesn’t respond to an email is an everyday occurrence; through experience, many salespeople and business developers know that not receiving a response doesn’t mean this person isn’t going to buy their services, especially if the salesperson adequately demonstrates persistence, friendliness, and patience.
In 2016, Mark approached tbk Creative for digital marketing solutions and to build a new website. His business was doing well but he wanted to sell more homes, faster. After a few initial meetings with Mark’s Marketing Director, it was time to meet Mark and go over a proposal. While booking our first meeting together, I probably sent Mark 3-4 emails over three weeks without receiving a response. One day, I bumped into Mark; he apologized and said he had been busy, but he suggested I send him another email with dates so we could lock down the meeting. I did so and the meeting happened; however, an additional meeting needed to occur. I probably sent another 3-4 emails over another three weeks before Mark responded and confirmed a suitable date.
With each email I sent, I was diplomatic and kept the same positive tone, something seasoned salespeople learn how to do through trial and error. It wasn’t that Mark wasn’t interested—in fact, he was interested the whole time—it really was, as Ryan suspected, that Mark just gets busy with other things, things that take priority over responding to a meeting request (such as overseeing his company as they physically move offices, finishing the 20+ homes they are currently building under contractual customer deadlines, maintaining a healthy relationship with his family, and probably a dozen other things I can only imagine matter a lot to him).
I was excited to share this story with Ryan not because I could say that I had been in his shoes not just in another situation and with another account, but that, in fact, I had been in his shoes in an almost identical setting and with the exact same account. I wanted to impart this story onto Ryan, to encourage him to press forward and to become more effective at business development, because if he can’t officiate these all too common situations in B2B business development, or if he can’t find someone who can (e.g., hiring a business developer), statistics have demonstrated that he’ll be out of business within five years.
I went to my email account and started drafting a response to Ryan. I was on a 30-day writing sabbatical in Greece (I was sitting on a café patio in Patras at the time) and had extra time on my hands, so I laid out for Ryan, step-by-step, how to handle this lead. I explained my personal experience; how I craft each email in this setting to be positive, a pinch stoic, and always diplomatic; how I offer no more or less than two dates when setting up meetings; how I provide shorter meeting duration times if the lead is higher up the sales funnel; and, most importantly, how I leave room for the client to decline the meeting but make it especially easy for them to say “Yes.”
The email was nearly done, and I felt in my heart that I was really helping Ryan. Then a heavy weight fell upon me. My mind started to flicker with a thought that wasn’t there moments before but I couldn’t ignore what was now present. If Ryan had already sent an email to Mark, Ryan couldn’t follow up on this lead anymore by email. His time, legally speaking, was up.
Under Canada’s Anti-Spam Legislation (CASL), in section 4.1. of the Electronic Commerce Protection Regulation (ECPR), when someone in an existing business relationship makes a referral—in this case, me—the referred party, Ryan, may only send one commercial electronic message (CEM) to the recipient, Mark.
Yes, one email is all a referred party gets.
I sat there looking at the detailed, step-by-step, impromptu manual I had just spent 15 minutes drafting; the email that was in my heart to draft and send; the one I thought could, at the least, be formative for how Ryan thinks about sales and, at its best, be critical to his company’s success. But if Ryan were to comply with CASL—which he probably should given that, as of July 1, 2017, recipients of CEMs can lodge civil legal proceedings under CASL’s private right of action provisions and that, at any time, he can be liable to up to $10 million in regulatory fines per offence by the CRTC—he couldn’t follow the advice I was about to provide. If he were to follow the law, my email was for not.
The brass tacks is that Ryan is prohibited from sending Mark anymore emails that are commercial in nature.
CASL has let Ryan and other businesses down, especially our Canadian start-ups who don’t have established relationships with the marketplace like larger and more established companies do.
On too many fronts, CASL is more rigorous than any other privacy legislation of its kind in the world. For instance, the United States, Canada’s largest trading partner and the world’s largest economy, would allow Ryan to send as many commercial electronic messages (what the CAN-SPAM Act calls “commercial electronic mail messages” or “CEMMs”) to the recipient as long as each CEMM was marked as “advertisement” (since express consent, arguably, isn’t established), lists sender details, and provides the recipient with a way to unsubscribe.
Yes, Ryan has other options: he could send Mark a letter (but what would that do?) or he could phone him, but the phone is often a less convenient form of communications, especially for the receiving party. In a world where time management has become crucial to performance excellence, electronic message mediums (like email) work well because instead of being at the beck and call of your ringing telephone, you can communicate with someone through ongoing electronic messages, where each response is sent when you have the time. Electronic messages are unobtrusive and are agnostic to time.
Strictly speaking, if Ryan can legally contact this lead via print or phone, or even show up at his office out of the blue, why has our federal government created a law that prevents him from sending commercial messages that happen to be electronic in nature? This not only sounds wrong in principle, but, according to lawyers such as Dr. Emir Crowne and Stephanie Provato in their legal paper Canada’s Anti-Spam Legislation: A Constitutional Analysis, 31 J. Marshall J. Info. Tech. & Privacy L. 1 (2014) and McCarthy Tetrault LLP partner Barry Sookman, it may be unconstitutional as CASL potentially violates the freedom of speech rights under Canada’s Charter of Rights and Freedoms.
Unfortunate situations like Ryan’s can be resolved by changing the regulation (4.1. of the ECPR) so that anyone with consent (as an aside, the provision without adequate rational omits express consent) or an exception may refer that person to a third party (“recipient”) presuming the that the referring party also has consent or meets an exception with that recipient and the party referred may send CEMs to this recipient with no limitations on the number of CEMs, provided that the first CEM, as the provision dictates, “…discloses the full name of the individual or individuals who made the referral and states that the message is sent as a result of the referral.” and all CEMs including the first contain sender details and a mechanism for the recipient to unsubscribe. In the off-chance that the referring party gets out of hand and is making too many referrals (which in practice is unlikely because the two parties are known to each other – consent or an exception must exist), allow the recipient to unsubscribe from the referring party too at any time.
This amendment will continue to cultivate natural situations like Ryan and Mark’s to occur. Not only will it provide Ryan a better chance to see his Canadian business succeed, but it will also protect the recipient, Mark, from receiving unwanted CEMs—if he doesn’t like what he sees, he can click “unsubscribe.”
This isn’t the only problem with CASL that needs reformation, but it illuminates other important ones. Other worthwhile amendments to the legislation would see implied consent simplified to be ‘one party providing their contact information to another party’, and doing away with the various existing business relationship purge dates (i.e., the 2 year and 6 month rules). These purge dates are excessively expensive for businesses who wish to automate this part of their email database management as businesses require expensive software development in order to know not only who to purge, but also when to purge them. There are certainly more issues that need reform, but the above examples highlight some of the main amendments pertaining to the electronic messaging provisions that would provide Canada with a healthier, more robust digital economy.
As per section 65 of CASL, it’s mandatory that CASL is reviewed by our government some time after July 1, 2017.
I hope someone with influence in our federal government has the courage to lead our country through a series of revisions that will not only make CASL lighter for our Canadian businesses to comply with, but will also continue to protect consumers.
Right now, the legislation is protecting consumers at the cost of businesses; it is a win-lose situation, but it doesn’t need to be this way. All the parties should work together for a better Canada.
Through some simple modifications to CASL and its accompanying regulations, our businesses, our consumers (like you and I), and our economy can all win.