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. 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.

Challenges of understanding and interpreting regulations often come from the difficulty to master the vocabulary used in the legal texts. The objective of this post is to explain, in simple words, the keywords of the CASL regulation.

First, let’s refresh our minds about the purpose of CASL

CASL, a federal law, was created in 2014 to protect Canadian residents from receiving unsolicited commercial electronic messages. As end-users we love this law that prevent our inboxes of any kinds from being overwhelmed by spam. From business managers or marketers’ perspective, this law another constraint to deal with in our daily business operations, although it helps us rationalize and rethink the way we engage with our customers or audience.

Now let’s summarize CASL in a few words

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.

Now we have a sense of the law, let’s define each keyword

Commercial electronic message

How to determine if a message I am sending is a commercial message?
Answer this question: Is the message’s primary purpose to encourage the recipient to participate in a commercial activity?
However, this is not an easy question. To determine if the objective of the message aims at encouraging the recipient to participate in a commercial activity, you should check the following elements:

  • The content of the message;
  • The hyperlinks in the message directing to a website or database;
  • Contact information.

Then, if the message and its elements contain a commercial offer or promotion for a product, service or one person’s services, 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, fixed or mobile, an instant messaging account and also it can be extended to some social media messaging systems (Facebook messenger and LinkedIn messaging) as they are closed 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, we consider two kinds of consents: expressed consent and implied consent. Let’s see what each means and the difference between them.

Express consent means that 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. Such consent can be obtained in writing, orally or electronically.

Express content

  • 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 express consent doesn’t expire, although the recipient can withdraw his consent at any time, the implied consent does. In the case of someone purchasing from a business, the implied consent is valid for 2 years.
Keep in mind that the sender is the one who has to prove he received consent.

Unsubscribe

To comply with CASL regulation, you must offer the recipient a way to unsubscribe to your CEMs. It can be a clear link in an email with a click to unsubscribe or the explicit mention in an SMS that the recipient can text “STOP” to unsubscribe.
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 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 send a CEM. A link to your website containing this information is acceptable.

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

Read our blog post Canada’s Anti-Spam Legislation Frequently Asked Questions.

Sources

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