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Marketing & Communications

Let Us Sit in Goddamn Silence for One Hour: Wrap-Up

It’s not often in life you get to say you did exactly what you set out to do, without any compromise to your vision and execution.

Up front, then, this is in the ‘win’ column. While (also up front) this wasn’t a runaway financial success with groundbreaking attendance, I did precisely what I came to do, and made an impact on the people I did reach. I didn’t attract crowds — as I understand it, I may have set records for attendance, but not in the right direction. The show may have been self-selecting for people who would value the experience, so maybe it’s no surprise that the people who came out loved it, and had incredibly interesting thoughts on their experience trying it. But — from the perspective of did it fill rooms, did I make money hand over fist — absolutely not. In box office terms, it was a stinker.

Which is more validating in a lot of ways than if it had just been kind of middling. How do you know an idea is actually ‘fringe’? People find it unsettling and challenging. So it was a personal success, and I think the Fringe benefited from having something in the schedule that was absolutely nailing the mandate.

On marketing and sales

I’d say I postered as much or more than any other Fringe show; I innovated (there were postcards in cafes, bookmarks in bookstores and little libraries); I made highly viewed (by most shows’ standards) reels on Instagram and got more media than other shows, including two radio interviews and some local press. Even a radio station in Calgary reached out to talk about it. I put a lot of money (well — not a lot of money, but relative to Fringe show promotions, a fair bit) into print material, and ran an Instagram ad campaign for a week before and over the duration of the show.

Everything was received, on balance, quite well (except for a smidge of poster defacing, which we’ll get into later). The Instagram ad performed spectacularly for the budget; if I were still in marketing, I’d look at the numbers and say “that exposure for that kind of spend? Hire this kid!”.

But you can’t sell people something they don’t want. And the Fringe this year was taking place at a community arts centre that sees a certain amount of traffic from people who are there for community arts stuff (including a lot of kids’ activities in the summer), but is out of the way the normal rhythm of downtown life. It’s not a “I’m going to go downtown, grab lunch, check out a Fringe show, maybe stop by the bookstore” kind of experience — you have to drive, take a bus, or cycle / walk with some determination.

It was also $25 a ticket, which I think is a fair price, set by the Fringe organizers, given that a lot of the shows are out of town or have 10-20 people involved, with sets and costumes and taking time off work; spending money on gas to drive here, buying food while in town, etc.

So there were two vectors for a “no:”

  • The idea freaks people out and makes them angry;
  • It’s out of the way and relatively expensive for what’s happening on paper.

Then you get a collapsing set of nesting circles:

  • People who think the idea has merit;
  • People who are actively curious about it;
  • People who might commit to an attempt at it;
  • People who are willing to displace themselves and pay money to do it.

The last category turned out to be a vanishingly small circle.

The Fringe shows that did really well were, on observation:

  • Local
  • Large casts and crews
  • Put on by “theatre people” — highly engaged and active in the local theatre scene

Chatting with audience members at the ‘big’ shows, it was a combination of family and friends of the performers/crew, and a contingent of dozens of people who go to all the shows that they know people in. In return, I’m sure all the people involved in these productions also go to these audience members’ shows.

And this is good stuff! It’s great to see local theatre succeed and people supporting it. I felt happy for the shows I went to that were packed to the rafters, not bad for my own — a solo show with no crew, and no strong connections to the theatre (or any) scene in town.

So even though I’ve largely transitioned out of marketing work, it was still a really interesting exercise in community marketing. It’s hard to sell new things, especially hard if you have no weight in the community you’re selling to, and the level of vague interest in an idea may not manifest in uptake for the idea. Having hundreds of people saying “I love this in theory” and wide media across print and radio, and truly exceptional numbers on social, does not necessarily translate to sales. Every person you reach is a potential sale, so the reach and engagement helps, but getting to the wallet is a very different process than getting to the eyes.

I’m reminded of a lot of very frustrating experiences where I’ve had to market something with no market research other than “people I know thought this would be a good idea,” and was inevitably left holding the bag when the product failed, because it wasn’t “marketed right.” There’s a reason I left that world behind to take on weird art stuff that makes me happy. Like this.

This was marketed “right,” and I’d argue, marketed successfully. The word was out. It didn’t sell. And as a reminder: this wasn’t about big sales, even from the jump. It was about doing this thing I wanted to do and damn the torpedoes.

So the marketing affirmation / learning was an added benefit, not a regret.

On honesty

It crossed my mind, and was also suggested by more than one person, that the show might have done better if it flew under a more duplicitous flag.

Calling it “The Black Box” or “Ruminations” or something. Billing it as an audacious one-man show that redefines theatre. I don’t know, that kind of horseshit. Bill it as a one-person, one-act show (maybe with a twist that audience members must keep secret! Have them sign a waiver at the door!) and then the rug-pull is they wait for something to happen and nothing happens.

I don’t know. It would almost definitely have seen more traffic. Maybe better results. But it just didn’t feel right to me to set people up and the silence be kind of a gag rather than the stated purpose. I change my mind a lot and might loop back around on this at some point, though.

On technical decisions

Being a theatre neophyte in a lot of ways, I didn’t think there’d be a technical director or technician. I kind of thought part of it would be a “well here’s the switch for the stage lights, and the jack for audio to the speakers” and that I’d be responsible for my own show, music cues, etc. But the Fringe actually provided a technician (Chip), and while I came into the tech rehearsal saying this would take five minutes max, we spent a bit of time working through chair / music stand and iPad (my hour-long timer) placement, the balance of light on me, the spectrum of yellow to blue of light on me, how high to keep the house lights, etc. I’m glad they were there.

On the eight shows

First show: August 7

10 attendees; a mix of friends (3), other Fringers (4) and legit ticket-buyers (3)

Fringe attendees included 4 teens, who I thought wouldn’t make it but wound up doing just fine. 1 sleeper, 1 fidgeter (stuff in pockets examined). I was incredibly nervous beforehand, and really wasn’t sure if I could make it, let alone if the audience would. Post-show my question was “clock or no clock” and it was overwhelmingly “clock”. People really wanted that security and a way to mark time. It stayed for the whole run.

Audience reactions: incredibly positive. One person really, really hit the wall at about 40 minutes, and was tremendously proud of pulling through. Another said they hadn’t really sat and thought like that in maybe their whole lives, and it was giving them a new perspective on meditation and introspection.

Personal challenge: hard as hell. I really, really hated it at the 10, 30 and 40 minute mark. I was counting the minutes/seconds right up til the end. I finished the show jazzed that anyone had come, but dreading the next seven. The positive feedback was doubly rewarding because I felt like I’d wasted everyone’s time. One of my cycles of thinking was “boy, I wish they had somebody more interesting to look at.” Which — okay, I’m being a dick to myself, but I think there is something to that. If it were Daniel Day Lewis or Phoebe Bridgers or Jack Black sitting live on stage for an hour doing this, there’d be, well, attendees, first of all, but I think a talented and charismatic performer would bring something to the experience for the audience.

Second show: August 8

0 attendees. Went home and had a nap (it was 1 pm on a Sunday).

I felt really bad afterwards that I didn’t power through in an empty room, but the event director came by to tell me it was a zero-sale with no walkups and asked me if I wanted to see another show’s dress rehearsal down the hall. It was kind of her to offer and in the moment, I felt like saying “I’d rather sit here by myself than see this dress rehearsal” would be kind of dismissive and rude. Then, after I’d fully packed up and was down the hall, I found out the dress rehearsal was being pushed back, and I was kind of out of the commitment zone, so I went home rather than go back and get out the chair, music stand, iPad, turn the lights on, etc. But even so, I feel like I let myself down on this one.

I was also really sad about attendance at this point. I knew in my head / heart that this would be a tough sell, especially at $25 a ticket, but I also had a daffy vision that this might bloom into something where there’d be 20 or so people doing it together, and it was very, very obvious that I’d get a small trickle of friends and a few curious folks. I put a brave face on it — “I’d rather it be a spectacular failure than a middling success” — but it’s still kinda sad when you put something out in the world to mostly thunderous, er, silence.

Personal challenge: n/a

Third show: August 9

5 attendees, including a good friend from Toronto, and my wife. A bit of a cavalcade in terms of the World Outside intruding, including a large laughing fiesta in the hall outside, a stage manager from another show creeping in to grab a piece of equipment, and a woman who opened the door at about the 40-minute mark, said “oh shit,” and shut the door without coming in.

Personal challenge: much like the first, but I found better ‘projects’ to occupy my mind. Clearly identifying a cycle of “train of thought; train of thought comes to a natural conclusion; oh fuck that was only five minutes oh shit I’m going to die up here; new train of thought…”. I still found it deeply unpleasant. The first few minutes, in particular, there’s a nearly literal devil in my mind saying “call it off! Just tell everyone it’s a joke and a mistake.”

Fourth show: August 10

6 attendees; a late show (8:15 PM — for context, I’m usually in bed a little before 9). Three friends, two strangers, one Fringer. One person rolled in about 20 minutes late. Our first legit sleeper: head falling backwards to the point I had spine concerns, their partner trying to gently shake them from time to time without startling them awake. One attendee said it was one of the most profound mental journeys they’d ever had in their life.

This is the one where I decided to tape some of these, just to have something for posterity/for the record.

Personal challenge: still very much about finding projects to occupy my mind. Really working in the last 20 minutes to get my brain to loop on “this is where I’m supposed to be and what I’m supposed to be doing; I don’t need to think about stuff or be productive.”

Fifth show: August 11

With live band The Winter in Canada (guitarist and drummer)! Mark and Eric showed up with a guitar and snare drum, and sat there without playing a note the whole time. Five attendees: partners of the band, good friend, stranger, and a professional acquaintance. After the show, the acquaintance confided in me that her parents had both passed away a few years ago, and given the challenges of work and family she really felt like that night was the first time she’d had since then to start to process the loss. She’d wept a little (silently). That kind of shook me; I was prepared for some jocular conversation, but this was more real than I was mentally set up for. I think I was probably more glib than I should have been.

Personal challenge: not so bad this time. By the end, I actually felt like I wanted to keep going (a first), and was sort of looking forward to the next one instead of dreading it. Having partners on stage was interesting; I had never thought the “performer/audience” dynamic was especially important, and really thought that doing this together was one of the most appealing things about the show. But having two more people on “my side” really felt different than being the person that the bulk of the lights are focused on.

Sixth show: August 13

Three attendees; two friends, one Fringe pass holder. The pass holder had pre-excused herself, saying she needed to pick up her daughter and had to leave 10 minutes before the show ended — then stayed to the end. She was getting a lot out of it and figured she could be a bit late to pick up her daughter. One friend was grateful for the opportunity to decompress after a very busy week of multiple family visits; the other, a doctor, just wanted to see what the experience was like and appreciated the chance to let his mind roam for a while without feeling pressured to do anything.

Personal challenge: this one, I felt like I was much more in the zone. It was still ‘project thinking’ for the first 40 minutes of so, but much longer focus on a single subject, and not as much pressure to churn through a lot of thinking. By the end, I was very comfortable, and actively wishing I could sit for a while longer.

Seventh show: August 15

This was the first show with a fly, which seemed to be very focused on me, but periodically would visit others. Three audience members, but the conversation afterwards went deep, with everyone in there pulling something different from the show. One woman was a self-described talker and this may have been the longest she’d been still in her life, and found that profoundly empowering. Another has treated the whole thing like a play about a silent man, so just observed me intently for the whole time, and as he watched the nothing became profoundly intense, especially given my struggles with the fly. He brought up that as an audience member he was always sitting in silence; so the dynamic shift was really wholly on the stage. Another man found it a deep retreat from some worries he had and managed to turn his mind over the hour from his troubles to trying to imagine what the other people in the room were facing and contextualizing his concerns.

Personal challenge: the fly was a blessing and a curse; it was something that would land on me and give me a few seconds of focus, but also created a stream of “at what point am I sitting dealing with a fly and not sitting in silence” as a rotating concern. There was only one fly in the room, so I did spend some time wondering what was going on in this fly’s life. How had it strayed so far from other flies? What was it hoping to find in this room? In general – this was an ‘easy’ one, and the more I do this the more I find I’m less worried about ‘what am I going to think about, oh no’ and more comfortable just letting thoughts bounce around. There’s the old meditation saw about letting thoughts ‘flow past you’ and this feels like a good fit for that idea…

I regrettably did not record this one! I wish I had. The fly!

Eighth and final show: August 16

Nine audience members; a mix of friends and strangers (two Fringe actors, three friends, three strangers, and the tech sat in for this one). This show was the first one (and last one!) where the stage lights were full and the house lights off; for the first time, I couldn’t see the audience at all and the dynamic was fully “I’m the performer.” This wasn’t planned; I think the technical director was just a bit tired after 12 straight days of Fringe. No fly this time. I kind of missed the fly.

Personal challenge: I thought I’d be introspective and get swept up in the “what did it all mean” thinking, but really, it was what is now a pretty normal set of both practical thinking (I’ve got the film fest coming up, what are the next steps for that) and generally ruminating on All The Things (one thought: if I keep this up on the regular, solo, I’ll probably never need therapy again). But as much I was expecting I’d be thinking about this as a whole project and its weight and meaning in my life… not so much. Still: easier than the first seven times.

On reviewing the tapes:

I don’t think I blink a lot in my regular life, but when I look at the videos of the performance, it looks like I’m trying to slip a coded message to Allied Intelligence under my captors’ noses. Maybe the theatre had dry air? There was certainly a lot of air circulation (you can hear the HVAC going hard, but not really cooling that much). Later shows were partly me thinking “don’t blink” periodically.

On being an interloper:

I’m really not a “theatre person,” at least to the extent that I’m innately excited about the Fringe, even while being in it. I did theatre in high school, I studied Radio & Television Arts at Ryerson (two dead media at a school that no longer operates under the same name; wotta world), but I haven’t been a “theatre guy” since then.

I really liked everyone involved with Fringe personally. Lovely people, clearly dedicated and passionate and brilliant.

But not my people. It’s a hard feeling to pin down, but it was a week of feeling a bit like I was a visitor from a foreign land; even more so than the out of town Fringers, who were mostly also Theatre People. I was working that week without time off and with a pretty crowded personal life already, so I felt actively guilty that I wasn’t “Fringing” and taking in all the other shows. I chatted with a few other folks but they were very much there to Talk About Theatre and all things theatre-related, and I felt a bit like a tire salesman at the ski convention.

It was a great toe-dip into a different world, but I can’t say it awoke something latent in me that makes me want to Do More Theatre. Oddly, it’s rekindled an interest to get back into radio stuff — that’s more my zone, my people.

On the dollar cost and what performances are “worth”:

There was pushback on this being $25 to attend — the price was a uniform cost for all Fringe shows (there were bulk tickets and passes etc., but the ad hoc cost was $25 for any show). One person even walked around town with a pen and Sharpie just to write on posters about how mad they were. For one poster they wrote on it in pen then came back later with a Sharpie to add more. Which I can’t even get upset about. It’s kind of awesome.

My initial reaction: yeah! I wouldn’t have paid for this if I weren’t doing it or connected to somebody doing it. The pricing structure makes sense overall, and uniform pricing makes sense overall, but even if I’d refused any “cut” (and that would have been a logistical nightmare for an operation that’s functionally one woman managing a lot of interns and part-time help) the ticket price still would have been higher than I like.

But then I started thinking more about why this is something that really triggered people.

I know people who have paid over $1,000 to sit at a Taylor Swift concert, far enough away that she’s a dot on the horizon, watching her perform on televisions in the arena. I know people who’ve paid hundreds of dollars to go to the opera or the ballet.

Conversely, instead of paying for a concert ticket, I can sit at home and listen to an album, or watch a video of an opera or the ballet, for next to free. So why pay to go to these things? Why go to the movies when I have Netflix at home?

And so on.

What’s a performance worth? An experience?

$25 to do nothing for an hour does seem ludicrous on its face. That was even my gut reaction. But when you start working through the difference between this and any other show… if you reverse engineer “I shouldn’t pay $25 to watch a show where somebody neither moves or speaks,” you start to go down a different and interesting set of questions. What’s the unit value of a word, or a gesture? If I’d danced silently for an hour I think the show would have been even <em>less</em> popular, but I don’t think I would have gotten the <em>how <strong>daaaaaare</strong> you</em> reaction. If I’d said a single word, would that mean the show is worth more? How many words would I have to say? Is a play with more words worth more than a play with fewer words?

That’s a line of thought that leads to the most expensive concert on earth being Aesop Rock rapping lots of complicated words really fast over an orchestra, and solo performers starving to death. That’s weird.

The cost “debate” has really made me more aware of what people are willing to pay (or not) for entertainment, and open to question what qualifies as “worth” money to have an experience.

Because it’s the experience, right? It has to be that. It can’t be value based on word count or gestures or the number of performers. So people will pay for an experience. If that experience is watching Taylor Swift on a TV in a giant space with 10,000 other people also watching Taylor Swift on a TV, that’s cool. If the experience is hearing a guy read poetry he wrote himself, that’s also cool. But the core recurring idea is that people are willing to pay something for experiences.

So I’ve kind of 180’d on the cost thing. Sure, it cost about the price of two combo meals at a fast food chain. But it’s an experience you won’t have anywhere else that exists at a single point in time in a place. Nobody else will (likely) ever put on this type of show in your lifetime. Is that worth $25 lousy bucks? I’ve kind of come around to ‘yeah’.

Obviously not worth that to other people, which is also cool. I would never spend a thousand dollars to watch Taylor Swift on a television. Frankly, I’d rather sit in silence for a goddamn hour, which brings us right back to where we started.

But what is an experience worth to you? What factors make an experience worth more, or less? Is it contact with fame? Uniqueness? Exoticness? I’d love to know what turns something into something you’d pay for. Maybe pay a lot for.

What did I learn about myself?

I’m proud of myself.

There were a lot of exit ramps from this thing. I didn’t have to submit to Fringe, I didn’t have to accept the pull when my name was drawn, I didn’t have to commit to the idea (I could have done anything for Fringe), I didn’t have to do all the shows (at least one Fringe show backed out of half their shows), I didn’t actually have to be silent.

I didn’t have to work as hard as I did to get the word out; I didn’t have to pay for all the print stuff or the Instagram ad, didn’t have to take media calls.

I did all these things because I wanted to give this the best shake possible: do exactly what I set you to do without compromise.

And I did.

The other question: did I change?

I think I did. I’ve bounced off meditation many, many times over the years, and never made a consistent practice last more than 5 minutes a day. I kept trying to ease in with smidges of time and build up.

I think maybe I needed to just go hard.

Even by the “easy” performances at the end, I was still in a mental state of chattering for the first 5 minutes, and hitting walls at around 20, 30, and 50 minutes. By 6 through 8, I could legitimately feel my brain settling into a flow state, a kind of “no thoughts, no worries” pattern in the last 10 minutes.

So if I keep this up — once every few days, maybe, in the morning before anyone else in the house is up — maybe I can actually get to a point where I can get to the peaceful mind sooner, and cut the monkey-mind chattering back a lot.

I’m going to try to keep the practice up. Not sure when, exactly, but if I found time to displace myself and do this eight times in 11 days, surely I can find the time to do it at home once or twice a week.

(I’ve thought about Quaker meetings; there’s one in my area. But Sunday mornings are a bit tricky for me, and even though they’re welcoming of people who are not-religious on the surface, I don’t think I’m ultimately comfortable going to what amounts to a Christian gathering regularly. Even if they’re nice folks. It’s also not ‘silent’ [people can be ‘moved to speak’] and the thinking is guided toward the ‘still small voice of God,’ which — see above)

Third thing: I think it made a difference to others, which is fantastic. Feedback from people who were at the shows was tremendous. I have three invitations to have lunch with attendees and talk more about it. It made a big difference to a few people, which I’m grateful for.

Will I do it again?

Probably not.

I think the idea COULD scale but it would take celebrity power, or somebody with an insane amount of charisma, to pull it off with the kind of audience volume that I think would make it really work well.

Again, I change my mind a lot. The real answer is ‘maybe’. I might see if I can pitch it to another Fringe, in a bigger city with maybe a bigger pool of people to draw from. Maybe, though, what I’ve experienced here of it being at least partially a semi-closed community loop will repeat elsewhere. I’m really not sure.

The other idea that’s been rattling around my head for a while, if I want to Fringe again. Maybe even more fitting for the zeitgeist. Who knows?


Categories
Marketing & Communications

Let Us Sit in Goddamn Silence for One Hour: The Ad

I made an ad for Instagram, we’ll see how it does. I like minimalism!

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Marketing & Communications

Cabin Rules

After watching one too many movies where a “cabin” has 20′ windows, a wine cellar, soaking tub, rainforest shower and a room that could be called a “foyer,” I have made a simple checklist. You’re welcome, Hollywood.

A checklist of things required to qualify as a "cabin" in a movie: The toilet experience is disturbing in at least one fundamental way; 
Bears;
No running water / water requires some sort of filtration to remove grit and stank; 
Any meal or bathroom time could be interrupted by a squirrel/possum or bat at any moment; 
May not have mice but feels like it should have mice; 
Neighbours have angry dogs, guns, or angry dogs with guns; 
Windows are single-pane, and divided into smaller panes held in with some sort of pre-war goo; 
Liveable for 2.5 seasons max; winter is deathfuckery;
Smells of pine, wood smoke, and 10,000 canned bean farts; 
More bears
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Marketing & Communications

Tim Minchin, and the genius of the zag

Watch this video and get back to me and let’s talk about the genius of the zag. Yes, there’ll be a test.

Tim Minchin is, of course, a brilliant man. I am not Australian and have never been to Australia and in all likelihood will never visit Australia but White Wine in the Sun is one of only two Christmas songs that makes me cry. 1The other one is the Cat Carol by Meryn Cadell, which frankly qualifies as goddamn trauma.

I am coming this two years too late, having seen Minchin’s speech at the Art of Tax Reform summit, itself a work of art.

Play it Safe is epochal for me on a number of levels.

First, it’s the perfect response to a mundane marketing request. “Say the usual things about creativity and the arts and uniqueness and vision,” goes the ask.

“How about I do exactly the other thing: champion safety and mundanity verbally, juxapose it visually, and do this knowing that it will land, because I trust my audience.”

And by Jiminy, does it land.

Partly because Minchin is a once-in-a-lifetime songwriter: he knows music, he knows lyrics, he understands the interplay.

Partly because the cultural context of the project — which he also fully understands — can underpin the zag of the zig. You can talk about the iconic Opera House in a “play it safe” context because you know that everyone knows that it wasn’t a “safe” project.

What am I taking away from Play it Safe today, which I think everyone should take away from it?

  • Trust your audience. This song only works if you have absolute confidence that the people you’re speaking to get it. That they can walk and chew gum at the same time.
  • Know your context. You’re never delivering a message in a vaccum; you’re delivering it at a time, and a place, to people who have a history and a perspective.
  • Have fun. “Act your age,” and Iggy Pop in his 60s being a maniac on stage. Hell yeah. Bring in some brass, why not? Throw in some dance numbers. If you are having fun, your audience will have fun.

This isn’t just a Minchin thing; it’s why Sinners why was a box-office shattering surprise in an era of cookie-cutter IP products, it’s why Peacemaker has resurrected the careers of Z-tier glam metal bands through artfully deployed opening-credit dance numbers.

Trust. Context. Fun.

Pure magic.

And — if you have 13-odd minutes to spare — the address to the Tax Reform Summit is also well worth your time. It starts as an articulate dissection of the creative process, and winds up of being a repudiation of AI slop, small-minded conservative budgets, and a whole-throated confirmation that big ideas, and big risks taken on culture can have incredible long-term rewards; much more than the “safe” bets ever do.

You’ll see Play It Safe again in that presentation, but it’s worth a second look. Trust me.

Australia, I’m jealous. Where’s Canada’s Tim Minchin? We need him, or her, or them.

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Marketing & Communications

AI sucks, part X of 1,000,000: Read.ai

Tip for AI adherents: if you want people to use it, make it less cancerous.

I was on a board call last week where one of the board members was using read.ai to transcribe minutes. To read the minutes, I had to make a read.ai account.

Sure, whatever. So I made an account with my Google account.

Today, I log into an entirely different meeting with an entirely different person. Not signing in with Google at all.

You’ll never guess what happens. Via cookies in my browser, read.ai determines that I’m a Google user, and auto-injects itself — without permission, and without asking — to “transcribe” the meeting.

After the meeting, I get a note asking why I’d added an AI bot to the call. I hadn’t. I’m baffled.

It takes me — a reasonably competent person, with fairly good technical skills — 45 minutes to figure out what’s going on. That this venomous little company is creeping around my browser to creep into my calls with no explicit prompts or permissions.

Another straw on the camel’s back of AI being — from an end-user perspective — an intrusive, unhelpful, rapacious way to kill the environment and add absolutely nothing of value to our lives.

I’ve gone from being AI-curious a few years ago to viewing it as an actively negative force in my life. Every interaction with technology now comes with effort and debt to turn off unwanted “features,” bloatware, waste.

Nobody wants this. Nobody needs it. I pray, daily, that Ed Zitron is right and this fever dream bubble is about to collapse.

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Marketing & Communications Theory

Images, slop, and the metaphor layer in storytelling

A vague developing thought on image-generation LLMs: used to be with image banks etc that you’d have to find a metaphor that worked and apply it, creating a layer that made readers think a little differently about the piece. Not everything — “senior looks baffled by technology” stock photos will always be with us — but broad writing would often be paired with conceptual visuals.

You’d sift through some banks and look for something that makes connective sense, but isn’t literally the headline regurgitated as a vaguely Ghibliesque picture. Or, saints be praised, hire and work with an artist who brings an intelligent interpretation to the piece.

You’re writing something on, I don’t know, inheritance tax. How do you show the positive or negative (depending on your slant) of this? To the image bank, or ask an artist for help: you might not be thinking of “large fish eats smaller fish” or “the old piggy banks where the hand grabs the coin” but once you see them, you think “oh, that’s an interesting way to look at this” and you’re off to the races. You’re forced into a metaphorhical framework.

Now that you can generate literal slop (both meanings of literal) to illustrate. Type “inheritance tax is bad” into an AI image generator and you get this kind of good-enough shiny horseshit, which adds no value to the overall piece, it’s just confirmatory noise (and eerily close to the “senior baffled by technology” trope:

We’re losing a layer of metaphor:substance in illustrated pieces in favour of literal:literal, and I think that ultimately makes the reading and thinking components just a little bit worse.

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Marketing & Communications

Kingston-area Newsletters

The list of resources for local residents on this site continues to grow with a new page on newsletters you can subscribe to from local community organizations and businesses.

Also added to the Kingston drop-down menu.

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Marketing & Communications

Puffery drift

I continue to be fascinated — maybe uniquely so? — by puffery. Probably because of the marketing background, but the notion that being untruthful is okay if the lie is extravagant enough that a layperson wouldn’t believe it 1my own words; I’m working on a set of definitions in case law, which will be interesting (to me, anyway). is not only intriguing, but I’d argue in some ways necessary to modern advertising.

At the far end, it makes perfect sense. If you watch an ad for Skittles and a unicorn touches a couch with its horn and the couch turns to Skittles, it would be preposterous for somebody to sue the Skittles people if a furniture-transforming unicorn fails to appear when they open a pack.

But at the other end of the spectrum, there’s a line past which the grey starts shading into black, and judges are making very nuanced decisions based on, I’d argue, very little guidance. Looking at CanLII, the word ‘puffery’ has been used a lot in court decisions in the last few years, with subtypes of puffery including…

  • “election puffery,” examined repeatedly by the Nova Scotia Labour Board (there seem to be a lot of union disputes in the Maritimes these days)
  • Criminal court, where puffery has been raised as a form of braggadocio under which somebody claiming to have committed acts of violence was clearly using puffery to enhance their rep, but not seriously confessing to crimes
  • Privacy statements, even granular ones such as “[COMPANY] complies with all applicable privacy laws, rules, and regulations in the jurisdictions within which it operates”.

Nothing substantial here today, but a bit of a placeholder to remind myself that I’d like to unpack this a bit more.

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    my own words; I’m working on a set of definitions in case law, which will be interesting (to me, anyway). ↩︎
Categories
CASL Consent Higher Ed Marketing & Communications Privacy

CASL at 10: Wrap-Up

This is part eleven of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of enforcement in 2015. Crosslinks will be added as new parts go up.

Part 1: Terminology

Part 2: Parameters

Part 3: Big Numbers

Part 4: Case File – Compu-Finder

Part 5: Case File Anthology, 2015-2016

Part 6: Case File – Blackstone Education

Part 7: Case File Anthology, 2017-2018

Part 8: Case File – Brian Conley/nCrowd

Part 9: Case File Anthology, 2019-2022

Part 10: NOV – Sam Medouini

Part 11: Wrap-Up

Core resources:

The Act

Enforcement Actions Table (CASL selected)

Here it is.

I’ve been taking various runs at a wrap-up of almost 10 years of CASL being on the books, and keep kind of bouncing off this summary. In part because it’s hard for me – as somebody who needs to interpret the regime, but who is also interested in looking at its effects over time – to get a firm grip on how it is implemented and practised based on the last 9-and-a-bit years of enforcement.

I’m going to break this down into a few components:

  • Useful things to know, that are in the Act but may not jump out at a user;
  • Specific observations based on notices of violation and CRTC rulings;
  • A general overview of how I feel about CASL. Spoiler: conflicted.

General rules:

CASL isn’t just for “spam”. Frankly, they should rename it. “Anti-Spam legislation” is a snappy phrase but causes more confusion than is warranted. The conventional understanding of spam is junk email, but this legislation applies to texts, intrusive software (malware), browser extensions… essentially, if it’s delivered digitally, it falls into the remit.

ANY CEM contaminates a non-CEM. Even if a message is 99% non-commercial, any inclusion of any content that – from the Act:

having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that

(a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;

(b) offers to provide a business, investment or gaming opportunity;

(c) advertises or promotes anything referred to in paragraph (a) or (b); or

(d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.

The Act, 1(2)

Requests for consent are also CEMs per s1.3 of the Act. This results in a Catch-22 – you can’t market without permission, but asking for permission is marketing. Added value is therefore key – or couching a consent request in an otherwise legitimate communication. I can’t email you out of the blue (except under a certain set of circumstances) asking you to opt into my newsletter, but I can post on LinkedIn telling people I’ve created a free white paper on best practices in Z, and require people to sign up for my newsletter to download that white paper.

Nuance that becomes clearer through decisions:

From Compu-Finder:

  • You can’t obfuscate the source of emails by generating different “from” identities or sender identities. Swapping out domain names, or who the email appears to be sent from, is immaterial. The owner of the domain(s) is at issue, not the sending domain itself [29-30]
  • Reported initial decisions are not final. It is always, always worth working with the CRTC, if you are one of the very rare organizations that gets to the point of having an AMP levied (see “CASL is your Old Testament God,” below). Explaining your context, pleading small-company-will-fail, and working with them to put a program in place to prevent future violations seems to be a foolproof way of getting AMPs reduced, sometimes very dramatically.

From Porter Airlines:

  • Stating the obvious, but this is a little trifecta of consent, contact info, and unsubscribe functionality – all three have to be in place for you to be compliant with CASL. You can’t mix and match.

From Blackstone:

  • A campaign is a violation, not an individual email. [2]
    • There is no conspicuous difference in the scope of campaigns, given Blackstone and later Conley/nCrowd. One send of 100 emails is “as bad” as one send of 10,000 emails on the surface; there’s no pattern evident in the decisions that show scope-based penalties.  
  • You don’t need a price to have a CEM: if you’re offering a service and implying it costs something, that’s enough to pass a threshold of “commercial electronic message” [18]
  • Somebody simply publishing an email address on the Internet isn’t enough to invite solicitation; if you are pulling addresses to create a list, keep records, as you still have to make a case-by-case justification of how consent is implied. As they say in the Act, ”the onus… rests with the person relying on it.” [25-28]
    • As an example – and this is me extrapolating, not the legislation – I am on the Smith Engineering higher ed website as the Director, Marketing and Communications, with my email published. That makes me contactable as somebody you can email if you’re offering a product that impacts marketing and communications in higher education, but you’ll want a spreadsheet somewhere that captures that information as the reason you’re reaching out to me.
    • I would argue that the “in higher education” component above is relevant and important, but given the overall pattern of how legislation is enforced (see again below) I think this is in the ‘jaywalking’ category of a distinction without a difference – it’s a fine point that could be argued pushes someone into the “spam” category, but likely too minor to be meaningfully enforced. That said, please don’t spam me.

From Ghassan Halazon:

  • People can be pursued as individuals, which is detailed in the Act [s 32]. There is no clear line via decisions of when vicarious liability will be imposed; the Act states that explicitly in s 31:
    • An officer, director, agent or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the  commission of the violation, whether or not the corporation is proceeded against.
  • To date there has been no “double dipping” where a corporation and a leader figure has been found in violation, but that doesn’t mean it will never happen.

From 514-Billets:

  • The CRTC has been open, at least once, to alternate compensation schemes; rather than cutting a cheque to the Receiver General, 514-BILLETS issued coupons for 75% of the imposed penalty.

From Datablocks/Sunlight Media:

  • While rarely, s 8.1 of the Act is enforced – it’s not clear on whether the relative scarcity of enforcement is because infractions are more rare, or cases are much, much more complex and harder to investigate and pursue.
  • To wit, this “malvertising” case seems pretty damning on the evident facts, but poor documentation and an aggressive malware response policy within the Government of Canada made this not pursuable.
  • This is obviously not an open invitation to do nefarious things with computers, but a user-level caution that if you intend to file reports on malware / intrusion software / etc., be slow and cautious about how you capture information and document it.

From Brian Conley / nCrowd:  

  • Again reading into the tea leaves of how the Act is enforced but it feels like vicarious liability is the recourse when it seems like companies aren’t going to be around long enough to pursue / there’s an evident pattern of MBA-style shell games.
  • There are large and seemingly arbitrary gaps in penalties without much rationale provided for the differing amounts by the CRTC (see, again, the next section)

From Orcus Technologies:

  • Vicarious liability [s 32 of the Act] is growing in use over time; either reflecting a greater focus on ephemeral companies, or an evolution in the CRTC’s understanding of what penalties will stick.
  • There seems to be an awkward marriage between CASL and criminal penalties for cybercrime – CASL itself expressly does not have a criminal component, and the hand-off from the CRTC investigation to the RCMP / OPP seems to only, possibly, be resulting in a criminal process four years on.

From Scott William Brewer:

  • Again, working with the CRTC seems to have a very high success rate in diminishing penalties – from $75,000 to $7,500 in this case.

The final tally

Who wants spreadsheets? We got spreadsheets.

Wuxtry! Wuxtry! Getcher spreadsheet heah!

When I tabulate all issued penalties from decisions to date, I arrive at $3,163,000. Imposed penalties – admittedly with fuzzy math around coupon redemption rates for the 514-BILLETS issue – come in at $1,185,750.

The differential is $1,977,250 – about 63% of issued penalties wound up not being imposed. We’re also assuming that all imposed penalties were, in fact, paid – in several cases the companies that had imposed penalties then seem to have gone out of business, so the likelihood of the Canadian Government having seen that money is dim.

Chart showing issued versus imposed penalties. Issued penalties are far higher than imposed.

I also can’t account for about $500,000 that CRTC summaries say were imposed; more on that under “CASL as a marketing exercise,” below.  

CASL as your Old Testament God

This kept running through my head as I tried to look at decisions and figure out if there was any clear logic to an external user regarding:

  • Who was investigated and penalized; was there a consistency in terms of numbers of complaints, egregiousness of the action, or public visibility of the offender?
  • When penalties were imposed, was there a clear line to draw regarding the severity of the penalty compared to the actual actions taken in violation of CASL?

As somebody raised in the church, the more I poked at it the more I felt I understood the terror of the, I don’t know, Hittites: there’s a baseline set of behaviours you’re expected to follow, but it’s impossible to know when the eye of judgment will fall upon you, and when it does, there’s no real way to predict the extent of your punishment.

Beyond those examples, it’s hard to know how evenly the law is applied – or even what the specific triggers and determinants of a penalty are. It doesn’t feel entirely random, but since most decisions are posted without the number of campaigns or scope of sends, there’s no way to draw a line from the violation to the penalty in a way that makes sense in terms of whether it’s being evenly applied.

CASL as a marketing exercise

The other thing is that the pattern of CASL actions – from the perspective of somebody that works in marketing – seems to be more about creating the impression of enforcement than consistently and rigorously applied penalties.

The most recent snapshot contained the following now-familiar text:

Payments and Penalties Under CASL

Since CASL came into force in 2014, compliance and enforcement efforts have resulted in administrative monetary penalties and undertakings totalling over $3.6 million.

I can’t account for these numbers: even the $3.6 million is $0.5M higher than a manual tally of NOVs from the CRTC site (I’ve made a spreadsheet).

My own numbers land at $3,163,000 in issued penalties, but only $1,185,750 in imposed penalties – about 37% of the issued penalties wound up being actually imposed.1The imposed penalties number does include a bit of my own math, as the 514-BILLETS case resulted in the issuing of $75,000 worth of rebates, which I calculated at far less than that value in terms of what the ultimate cost to the company would have been.

But there’s also a pattern of big shock-and-awe announcements that get quietly walked back after the fact, or that lead to follow-on penalties much smaller than the initial ones:

  • A national-headline-grabbing $1.1M penalty for Compu-Finder, later reduced to $100,000.
  • Similarly, significant hay made about Brian Conley being issued an NOV as “vicarious liability”, at $100,000, but then much smaller amounts for a similar breadth of issue by fellow traveller  Ghassan Halazon and the completely unrelated William Rapanos.
  • The “malvertising” case with Datablocks and Sunlight Media, which dropped a $250,000 penalty to nothing, while narrowing the scope of its investigation from the broad issuing of malvertising across the Internet to a lack of proof on specific Government of Canada computers.

 A journey through CRTC CASL “Snapshots” show a pattern of reporting actions that weren’t actually taken under CASL – things done by the CRTC as a whole, but as far as I can tell unrelated to CASL or its enforcement.

For instance, in the most recent snapshot, headlines include:

  • Large-scale Bank Phishing Investigation – a criminal investigation, following reports to CASL
  • Using social media to warn Canadians – essentially, CRTC posted and retweeted about frauds

In the previous snapshot, the headlines are all about various CRTC activities – a CRTC decision regarding botnet blocking (its development being the sole headline of an earlier snapshot), a report on a Canadian “dark web marketplace” (actually a reference to the previous snapshot, and not new news) and vigilance over malware called QAKBOT.

And so on. I won’t blow-by-blow this, but if you go back through the snapshots, the bulk of reporting isn’t actually about CASL, but other CRTC activities.

This makes perfect sense from a certain perspective. If you’re a parent, or a teacher, or have ever run a volunteer organization, there are times when you have a rule that you can’t practically enforce, and for whatever reason the common good isn’t enough to get people to follow it. Telling people there is a rule, and enforcing it sporadically, but with harsh enough penalties that it scares everyone into compliance, makes a lot of sense.

Starting with the assumption that the CASL team is smart, works hard, and is just not adequately staffed to provide perfect enforcement nationally at all times (which would take a preposterous scaling-up), big penalty announcements with quiet walkbacks, trumpeting non-CASL achievements in a way that makes CASL look vast and vigorous, is a good move. In the day to day, risks of getting caught are relatively low (see below), but when $1M+ penalties are making the headlines, the idea of getting caught in that net is scary.

But is scary enough?

Does CASL work?

Back when I started this analysis, I said my interests were:

  • establishing whether or not the overall rate of spam is going down
  • gaining some understanding of the likelihood of a significant action being imposed on an organization

What have we learned?

Is spam going down?

On the first front, the answer is clearly that complaints are not going down.

graph of spam complaints over time, trending up

Arguably  there are many reasons for this – including CASL’s own effectiveness in sensitizing the public to spam and fraud, driving reporting numbers up.

But – given the sporadic nature of enforcement, and the amount of fuzziness around what CASL is claiming, both in terms of penalties and its own vs. taking credit for other CRTC activity in its snapshot – I don’t have a great feeling about it.

Maybe it can’t “work”. Maybe the digital world is too big, and too global, and evolving too fast, for us to “beat” online fraud in any meaningful and lasting way, and stemming the tide is the best we can ever hope for. I don’t have the time or resources to really meaningfully compare CASL to other national spam protection regimes, so there aren’t any comparators out there I can easily index against.

It’s possible that looking at CASL through the same lens as other public-service organizations and criteria – is crime going down, as a measure of police effectiveness; wellness and death rates, as a measure of public health effectiveness – is a fool’s errand.

This leaves me with an aggregate shrug. Does CASL work? Shrug. Could it be doing better? For sure. Should we, as a society, allocate the kinds of resources to it that it would take to do better? Shrug.

But if my read of CASL actions, and their own snapshot headlines, is correct and the slow pivot is from enforcement to awareness, and there’s been a general slide from “we can stop this” to “our best chance is to educate the public, focus only on the worst offenders, and rely on private enterprise to develop better detection and protection algorithms,” that’s a big change over the last 10 years that’s never been explicitly acknowledged.

What’s the likelihood of specific action being taken?

Low. Like, real low. The math remains 218,465 complaints per eventual financial penalty. The “lowest” threshold of effort CASL imposes, a notice to produce, still only happens once per 1000 complaints. That’s not a threshold, I’m not saying “nothing happens until you get to 1000 complaints,” that’s just how it averages out.

But, as detailed in the “Old Testament” section above, also horrifyingly arbitrary.

I am not a lawyer and this is not legal advice, but if I were to get one takeaway from all of this, it’s really a two-part maxim:

  • Don’t be a jerk, and
  • Do your best.

If I step back and squint and try to make sense of this decade of decisions, the pattern that seems to come through the fog is that getting CASL to focus on you is rare, and best-effort attempts to follow the rules seem to buy a lot of, if not absolute, forgiveness.

CASL decisions tend to land on unequivocal wrongs. There’s not a lot of stuff in the archives that suggests that they penalize innocent mistakes, or even grey-area decisions. There’s never been a decision that has come down on a public service organization, charity, or non-profit. Not to say there won’t ever be, but the focus seems to be on parties that are clearly doing wrong, should have known better, and did scammy, spammy things anyway.

Don’t break the law! Never break the law!

In principle, CASL is a good thing. It’s reasonably clear. We would all live in a better world if everyone followed these rules. So we should.

But… if you make an inadvertent mistake, or you look back at a campaign and say “oh, we should have done X,” or “I don’t know if we were in full compliance with Y,” I wouldn’t let it ruin your lunch. Learn, pull up your socks, and do better on the next one.

With text-based phishing and malware and online casinos and a whole planet of scammers, the top-of-mind analogy is the city’s on fire and there are riots in the streets. Jaywalking is still wrong, but if you forget to check the traffic lights at 2 a.m., you’re not the kind of problem the CRTC is looking for.

Wow, this went long

I didn’t mean for this to hit 3,000 words! I’ll stop here.

Next up, stepping a bit outside the review mandate, but bringing it back to my own interests: poking at whether or not students and academic institutions can be considered to be in a “business relationship,” which has a heavy impact on CASL but a lot of other things too. This might take a while. Expect more quick observations on IP, privacy and marketing in the interim while I chip away.

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    The imposed penalties number does include a bit of my own math, as the 514-BILLETS case resulted in the issuing of $75,000 worth of rebates, which I calculated at far less than that value in terms of what the ultimate cost to the company would have been. ↩︎
Categories
Marketing & Communications

CASL at 10: Sami Medouni

This is part ten of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of enforcement in 2015. Crosslinks will be added as new parts go up.

Part 1: Terminology

Part 2: Parameters

Part 3: Big Numbers

Part 4: Case File – Compu-Finder

Part 5: Case File Anthology, 2015-2016

Part 6: Case File – Blackstone Education

Part 7: Case File Anthology, 2017-2018

Part 8: Case File – Brian Conley/nCrowd

Part 9: Case File Anthology, 2019-2022

Part 10: NOV – Sam Medouini

Part 11: Wrap-Up

Core resources:

The Act

Enforcement Actions Table (CASL selected)

A quick late 2023 update: the CRTC has published an NOV for Sami Medouini for what appears to be text-based phishing campaigns; NOV below:

File No.: 9110-2021-00606

File No.: 9110-2021-00606

To: Sami Medouni

Issue Date of Notice: 11 July 2023

Summary of investigation

The Canadian Radio-television and Telecommunications Commission (CRTC) is responsible for the administration of sections 6 to 46 of Canada’s Anti-Spam Legislation (the Act), and the Electronic Commerce Enforcement (ECE) division of the Commission investigates potential violations pursuant to the Act.

In March 2021, CRTC staff launched an investigation into a series of high-volume phishing campaigns and potential violations of paragraph 6(1)(a) of the Act.

Paragraph 6(1)(a) of the Act states that it is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message (CEM) unless the person to whom the message is sent has consented to receiving it, whether the consent is express or implied.

Pursuant to section 22 of the Act, a notice of violation has been served on Sami Medouni for committing six violations of paragraph 6(1)(a) of the Act.

Between 22 December 2020 and 14 January 2021, Sami Medouni sent or caused or permitted to be sent at least 31,925 phishing Commercial Electronic Messages (CEMs) without the consent of recipients, from fraudulently obtained telephone numbers.

Specifically, Sami Medouni sent the following commercial electronic messages without express or implied consent by using six different telephone numbers:

  • 13,285 CEMs on 22 December, 2020;
  • 18,138 CEMS between 22 and 23 December, 2020; and
  • 502 CEMS on 14 January 2021.

In accordance with section 13 of the Act1Section 13 – Burden of proof:  A person who alleges that they have consent to do an act that would otherwise be prohibited under any of sections 6 to 8 has the onus of proving it., the person who sends a CEM has the onus of proving that consent was obtained. There was no evidence obtained during the investigation to indicate that Sami Medouni obtained the necessary consent to send CEMs.

Information and evidence to support this investigation were gathered from multiple sources, including Notices to Produce pursuant to section 17 of the Act, and provided reasonable grounds to believe that, by using six separate phone numbers, Sami Medouni sent 31,925 CEMs without consent, representing six violations of paragraph 6(1)(a) of the Act.

Based on the information gathered in the investigation, the Director of the Electronic Commerce Enforcement division has issued a Notice of Violation, imposing an administrative monetary penalty of $40,000 to Sami Medouni.

Violations are connected to the number of phone numbers used — a “campaign” is a violation, not an individual message, so if Medouni allegedly bought a phone and used it to send CEMs until there were enough spam reports for carriers to block it, each phone would therefore represent a “campaign”. Ergo: six campaigns, comprised of 31K messages.

These are identified as phishing messages in the NOV itself; the CASL violation is strictly consent, but phishing is fraud under s380(1) of the Criminal Code. Unlike with Orcus, the CRTC does not mention investigations or criminal charges here.

This is only an NOV — I’ll update my overall stats when time allows, but this doesn’t change the math on final decisions (the differential between issued and imposed penalties is of interest, but I can’t update it until we get to the “imposed” part.

We’ll stay tuned on this, and move on to our wrap-up.

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    Section 13 – Burden of proof:  A person who alleges that they have consent to do an act that would otherwise be prohibited under any of sections 6 to 8 has the onus of proving it. ↩︎