Canada’s Anti-Spam Legislation Frequently Asked Questions

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

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

Now you have a better understanding of the terminology used in the field of the CASL regulation, we can deep dive into its principles.

What is CASL?

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

On the one hand, as end-users, we appreciate the benefits of this law that prevent spams from overwhelming our inboxes of many kinds 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 audience, we have to consider this law and adapt both our tools and our 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 an unsubscribe mechanism.

When does CASL apply?

CASL applies to a commercial electronic message (CEM) that is sent to an electronic address of Canadian recipients.

To whom does CASL apply?

CASL applies to any person or business sending CEMs to Canadian people and or companies. CEMs sent from another country to Canada’s recipients must comply with CASL.

What does 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, must include identification requirements and have a functioning unsubscribe mechanism.

How can you get consent from recipients?

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

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

When a person has clearly agreed to receive CEMs by taking a proactive action such as by opting-in, for example signing up on a website, this is express consent. Such consent can be obtained in writing, orally or electronically. Express consent doesn’t expire, although the recipient can withdraw his 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;
  • A non-solicitation notification does not accompany the publication of the 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 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 a recipient. Remember that the sender is the one who has to prove he received consent.

What are the requirements for an unsubscribe mechanism?

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 click to unsubscribe with a click. In the case of text messages, the CEM sent via SMS may content 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.

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 they have 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, sending 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 or similar.
  • 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 and,
    • The message must concern the activities you are sending the CEM to.

For the detailed exemptions for 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 where the primary purpose of the CEM is to raise funds for the charity.

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 you send to an electronic address. The latter is not limited to emails as it also includes voicemails and text messages. Then, CASL also applies to text messaging.

Now you know what CASL consists in and what you should do, make sure you have the right tools. 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.

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