Canada’s Anti-spam Legislation - Frequently asked questions

Legal Disclaimer:
The article is for informational purposes only and does not provide legal advice. Information on this website are published by Kimoby to provide your business with free information regarding the laws and policies described. While Kimoby provides a communications platform built with compliance in mind, you should contact an attorney before sending a text message marketing campaign for your business. You should also consult with legal professionals regarding any questions or advice you may have about Canada’s Anti-spam Legislation.

Before delving into the law itself and its requirements, you may want to get familiar with the definition of the words used in the CASL by reading our blog post, entitled Useful Definitions to Help You Understand Canada’s Anti-Spam Legislation.

Now you have a better understanding of the terminology used with CASL’s regulations, we can deep dive into its principles.

What is CASL?

Canada’s Anti-Spam Legislation (CASL), is a federal law, which was created in 2014 to protect Canadian residents from receiving unsolicited commercial electronic messages.

On the one hand, as end-users, we appreciate the benefits of this law that prevent spam that overwhelms our inboxes, such as voicemails, emails, text messages or messaging systems.

On the other hand, as business managers or marketers, although CASL helps us rationalize and rethink the way we engage with our customers or audiences, we have to consider this law and adapt both our tools and daily business operations to make sure we comply with the law.

What does CASL state?

CASL states that before you send a commercial electronic message (CEM) to an electronic address, you need to comply with three main requirements:

  • Obtain consent
  • Provide identification information
  • Provide a means to unsubscribe

When does CASL apply?

CASL applies to commercial electronic messages (CEMs) that are sent to email addresses of Canadian recipients.

Who does CASL apply to?

CASL applies to any person or business that sends CEMs to Canadian citizens and/or companies. CEMs sent from another country to Canada’s recipients must comply with CASL.

What does the definition of CEM include?

Messages that are commercial in nature that are sent over a text messaging service or Bluetooth messaging are subject to CASL, as these messages are transmitted to an electronic address. This means you must have obtained consent before sending the message; it must include identification requirements and have an easy unsubscribe mechanism.

How can you get consent from recipients?

As we saw in a previous blog post, there are two kinds of consent: express consent and implied consent.
To obtain the consent of a person to send CEMs, you have to:

  • Describe the purpose for requesting consent
  • Provide the name of the person and/or entity requiring the consent
  • Provide contact information of who is looking for consent
  • Indicate how the recipient can unsubscribe

When a person has clearly agreed to receive CEMs by taking a proactive action, such as signing up for a website, this is express consent. This type of consent can be obtained in writing, orally or electronically. Express consent doesn’t expire, although recipients can withdraw their consent at any time.

Can consent be implied?

Yes. Consent is considered implied in some specific situations:

  • You have an existing business relationship, based on a previous commercial transaction, or an existing non-business relationship, such as common membership, with the person
  • The electronic address of the recipient to whom the message is sent is publicly available
  • If a non-solicitation notification does not accompany the public availability of an email address
  • The message you are sending is relevant to the person’s business, role, functions or duties in a business or official capacity

In the case of someone purchasing products or services from a business, the implied consent is valid for 2 years.

Can you send an email to ask for consent?

No, you can’t. An electronic message that contains a request for consent to send a CEM is also considered to be a commercial electronic message.

Should I track the consents I am getting?

Yes! You must be able to prove you got consent from the recipient. Remember that senders must prove they received consent.

What are the requirements for a means to unsubscribe to emails or text messages?

With the CEMs you send, you must include an option to unsubscribe.
For example, you can add a clear link in an email with a link to unsubscribe with a click. In the case of text messages, the CEM sent via SMS may include the explicit mention that the recipient can text “STOP” to unsubscribe.
You can offer recipients to unsubscribe to all or specific CEMs your organization sends, such as emails, newsletters, blog posts or text messages.
The unsubscribe mechanism must be simple, quick and easy for the end-user to understand.

Are they exemptions?

There are several exemptions of which are the followings. CASL doesn’t apply in the case of:

  • A message sent by an individual to another with whom he or she has a personal or family relationship.
  • A message sent to a person who is engaged in a commercial activity and consists solely of an inquiry or application related to that activity. For example, in the case someone sends a quote for the supply of goods or services requested by the message’s recipient, CASL doesn’t apply.
  • A message that provides warranty information, product recall information, or safety or security information about a product, goods or a service that the person to whom the message is sent uses, has used or has purchased.
  • A message that provides notification of factual information about a purchase, use, subscription, membership, account, loan, delivery of goods, etc.
  • In the case of B2B CEMs, there is an exemption as far as some criteria are respected:
    • The message is sent from an individual from an organization to another individual of the recipient organization
    • The two organizations must have a relationship
    • The message must address topic matters that are relevant to the CEMs you are sending

For the detailed exemptions regarding CASL, refer to the law.

Does CASL apply to non-profit organizations and registered charities?

Yes. However, there are exemptions. For more information refer to section 3(g) of the Governor-in-Council Regulations for CEMs sent by or on behalf of a registered charity in which the primary purpose of the CEMs is to raise funds for charities.

Does CASL apply to political parties and candidates?

CEMs sent by or on behalf of a political party or a person who is a candidate for elected office are excluded if the primary purpose of the CEM is to solicit a contribution, according to the Governor-in-Council (GIC) Regulations.

In conclusion, CASL applies to most CEMs. This is not limited to emails as the regulation also includes voicemails and text messages. In other words, CASL also applies to text messaging. Now that you know what CASL consists of and what you should do, make sure you have the right tools to ensure compliance.

If you are not using texting for your business today, you may want to start looking for the best CASL-compliant solution that will meet with your goals.
Take a look at our platform today.

Sources

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