Canada’s Anti-Spam Legislation Takes Effect July 1, 2014
The Canadian Radio-television and Telecommunications Commission (CRTC) recently released a video presentation covering Canada’s Anti-Spam Legislation (CASL) which addresses SMS spam and misleading marketing practices that apply to text messaging communication. The new legislation takes effect July 1, 2014 and it is an initiative to reduce unsolicited commercial messages and deceptive communication practices in Canada.
During the video, the speaker mentions that “we would like to see Canada removed on a very permanent, regular basis” from a popular top ten list where spam originates. One such list–“This Week’s top 10 Countries Sending Spam“–has been published since 2009 by ICSA Labs, an independent division of Verizon. Canada showed up as number 8 during the week of 6/9/14 – 6/15/14. CASL is Canada’s effort to combat this and to change Canada’s reputation as a spam haven.
What are the Rules for Sending SMS in Canada?
In general, there are three requirements to send a text message which includes consent, identification information, and a way to unsubscribe from SMS.
Information about the CRTC regulations may be found in the Telecom Regulatory Policy CRTC 2012-183 document. Details pertaining to text messages are outlined in the Appendix to Telecom Regulatory Policy CRTC 2012-183. It discusses the subsections or regulations which pertain to Commercial Electronic Messages (CEM).
1. Consent (Regulation 4: Information to be included in a request for consent)
CASL dictates two types of consent – expressed and implied. Express consent may be obtained orally or in writing. The rules show the following conditions as sufficient to demonstrate express oral consent (see 22):
- It can be verified by an independent third party
- Complete and unedited audio recording is retained
Written consent includes paper and electronic forms. A record of the date, time, purpose, and manner of consent must be retained in a database. Acceptable written forms of express consent include (see 26):
- Check box on web page
- Consent form at point of purchase
Implied consent under CASL occurs under two conditions:
- Existing business relationship – “The recipient has made, or enquired about, a purchase or lease of goods, services, land or interest in land, a written contract or the acceptance of a business, investment or gaming opportunity from you.” (Source)
- Existing non-business relationship – “You are a registered charity, a political party or a candidate, and the recipient has provided you a gift, a donation or volunteer work. You are a club, association or voluntary organization and the recipient is one of your members.” (Source)
In both cases of explicit and implied consent, the person or business sending the message is responsible for proving that they obtained and have retained the recipient’s consent. Additional compliant text messages considerations include the following:
- A request for consent cannot be obtained by sending a text message
- Consent requests cannot be bundled with general terms and conditions
- Must be clearly identifiable
- Separate tick-boxes should be used and the end-user must click “on” the boxes they consent to
- Silence or inaction is not considered express consent
The CRTC website uses the following example online at http://www.crtc.gc.ca/eng/archive/2012/2012-548.htm:
2. Identification (Regulation 2: Information to be included in CEMs)
The identification requirement states that the sender must identify themselves, or the persons on whose behalf the text message is sent. This section of the CASL rules covers the information that must be included in the text message:
- Name of person sending SMS and/or the person on whose behalf the SMS is sent
- Mailing address
- One other piece of contact information
Since there are so few characters in a single text message, when identifying the sender becomes impractical, the sender can include a hyperlink to a webpage that contains the sender’s information as long as “the webpage is readily accessible at no cost to the recipient.”
3. Unsubscribe (Regulation 3: Form of CEM)
An unsubscribe mechanism must also be included in the text message as long as it is simple, quick and easy to use. It must also be clearly and prominently set out.
Additional CASL Guidance
The following Best Practices are recommended by the CRTC:
- Personal & Family Relationships – CASL rules do not apply to text messages sent between individuals who have a direct, voluntary, and 2-way communication that is considered a personal relationship. These relationships exist between individuals. A company or legal entity cannot have a personal relationship with an individual in this instance.
- Express consent obtained prior to CASL – you can continue to rely on the express consent even if the request did not contain the newly required identification and contact information. However, all express consents obtained on or after July 1, 2014 must include the required information for consent.
- Transitional period for implied consent – Section 66 covers this transition and states, “Under section 66, consent to send commercial electronic messages (CEMs) is implied for a period of 36 months beginning July 1, 2014, where there is an existing business or non-business relationship that includes the communication of CEMs. Note however, that this three-year period of implied consent will end if the recipient indicates that they no longer consent to receiving CEMs. During the transitional period, the definitions of existing business and non-business relationships are not subject to the limitation periods that would otherwise be applicable under section 10 of CASL. Businesses and people may take advantage of this transitional period to seek express consent for the continued sending of CEMs.” (Source).
- Business to Business – Consent is not required for text messages sent by an employee, representative, consultant, or franchisee of an organization to members of the same company. When sending to members of another company, the companies must have a relationship and the message must pertain to company activities.
- Registered Charities – Text messages sent by or on behalf of a ‘registered charity’ as defined in s. 248(1) of the Income Tax Act, are excluded from section 6 of CASL.
- Political Parties & Candidates – exempt from CASL requirements as long as the primary purpose of the message is to solicit contributions as defined in subsection 2(1) of the Canada Elections Act.
Please see Frequently Asked Questions about Canada’s Anti-Spam Legislation for more information.