Useful definitions to help you understand Canada’s Anti-spam Legislation

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.

Understanding spam regulations can be a challenge, particularly with the vocabulary used in legal texts. The post breaks down, in layman’s terms, the key points to keep in mind regarding the CASL regulation.

What is CASL?

CASL is a federal law that was created in 2014 to protect Canadian residents from receiving unsolicited commercial electronic messages. As end users, we love this law as it prevents our inboxes to become inundated with spam. From a business manager or marketer ’ perspective, this law adds another constraint to deal with in daily business operations. It means organizations need to rethink the way they engage with their customers or audience.

CASL in a nutshell

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

  1. Obtain consent
  2. Provide identification information
  3. Provide an unsubscribe mechanism

Key definitions

Commercial electronic message

How can you determine if a message you are sending is a commercial message?
Answer this question: Is the message’s primary purpose to encourage the recipient to towards a commercial transaction?
This is not an easy question. To determine if the objective of the message aims to lead the recipient to a commercial transaction, you should verify the following:

  • The content of the message
  • The hyperlinks in the message that redirect recipients to a website or database
  • The contact information

Then, if the message and its contents include a commercial offer or promotion for a product or service, the message is considered as a CEM.

Electronic address

An electronic address is not limited to an email account. It also includes a telephone account (landline or mobile) and an instant messaging account. It can also be extended to some social media messaging systems (Facebook Messenger and LinkedIn Messaging) as they are private, two-way direct messaging systems.

Consent

According to the Oxford dictionary, consent is “permission for something to happen or agreement to do something.” In the context of CASL, there are two kinds of consent: expressed consent and implied consent. Let’s see what each means and the difference between them.

Expressed consent means that a person has clearly agreed to receive CEMs by taking a proactive action, such as opting-in for a newsletter or signing up on a website. Such consent can be obtained in writing, orally or electronically.

Consent is implied if:

  • 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.

While expressed consent doesn’t expire in time, the recipient can withdraw his or her consent at any time. Implied consent does expire. In the case of someone purchasing a product or service from a business, the implied consent is valid for 2 years.
Keep in mind that the sender has to prove that the business received consent to send messages to the recipient.

Unsubscribe

To comply with the CASL regulation, you must offer the recipient a means to unsubscribe from your CEMs. It can be a clear link in an email to unsubscribe or the explicit mention in an SMS that the recipient can text “STOP” to stop receiving messages.
The unsubscribe mechanism must be simple, quick and easy for the end user. You can offer recipients to unsubscribe to all or specific CEMs your organization sends out, such as emails, newsletters, blog posts or text messages.

Identification information

When you send CEMs you must provide identification information to the recipient. It means you have to identify yourself and the persons on whose behalf you are sending out a CEM. A link to your website containing this information is acceptable.

Now that we have a better understanding of the terminology used regarding the CASL regulation, we can address the law in more details. Read our blog post Canada’s Anti-Spam Legislation Frequently Asked Questions.

Sources

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