Text Marketing and Canada's Anti-Spam Law (CASL)
By Paul Crane | October 15, 2014
On July 1 2014, Canada's Anti-Spam Law (also known by the acronym "CASL") went into effect. Part of CASL's mandate applies to commercial electronic messages (CEMs), which includes emails and text or SMS messages.
SMS stands for "short message service." Most of us are more familiar with the term "texts" or even "text messages." However, they all refer to the same technology - those simple messages we all exchange daily on our phones!
By now, most of us are familiar with the challenges involved with ensuring our email databases are CASL compliant, but how does the law apply to text messaging?
For instance, how can service providers who send automated appointment reminders via text message ensure compliance? What about a retailer using text messaging to deliver a weekly incentive or coupon to her customers?
Consider: CASL requires that all CEMs must include both a valid unsubscribe mechanism, as well as a physical mailing address and one additional way to contact the sender (which may be a phone number, an email address, a contact form on a web site, and so on).
Luckily, CASL offers some flexibility here.
To address the challenges inherent in character limited text messages (in Canada, text messages are restricted to 136 characters) CASL allows that this information be available via a web link, appended to your message. Considering that your audience will be accessing this link via a mobile device, this link is best directed to a mobile responsive web page for an optimum experience.
To have a minimal effect on character count, this URL should be as short as possible, set up as a custom redirect on a 2 or 3 digit ".ca" domain.
A CASL compliant message might look something like this…
This message contains both the CASL mandated unsubscribe mechanism, and access to a mailing address and contact data is provided via the "info" link.
Unfortunately, CASL does not account for the roughly 35-40% of Canadians who do not have a data plan (or mobile Internet access), or alternatively, have only periodic access via home wireless networks or free public WiFi.
What's the implication of this?
These people may not have access to the mandated mailing address information and additional contact data viewable via the required link. More on the ramifications of this in a moment!
SMS & Implied Vs. Express Consent
CanadaOne has a great article on CASL here which covers this topic in detail, so I won't go into too much depth on the nitty-gritty of implied vs. express consent. Essentially…
If you and I have an existing business relationship, you have "implied consent" to contact me - for up to 3 years if our business relationship began prior to July 1, 2014, and for up to 2 years if our relationship begins afterwards.
However - and this is the confusing part - each new transaction will "reset" that two year time period so it begins anew. Essentially, this means that as long as your customer maintains a continuous business relationship with you, you have on-going implied consent to contact her at any time, provided the date of the last transaction does not exceed 2 years in the past.
CASL also allows for existing "non-business" relationships, but these are more narrow in scope and apply to relationships with registered charities, political parties, clubs, associations and so on.
Nevertheless, if you're marketing with text / SMS, you won't want to rely on implied consent. You'll want full blown express consent (I'll explain why in a moment). This requires that some sort of affirmative action be taken on the part of your customers to indicate that they want to continue to receive these communications.
For SMS / text messaging, express consent can be given…
- Via a handset initiated subscription, followed by a double opt in confirmation process.
- Signing a "physical" or electronic document that clearly indicates your customer wishes to receive further commercial text messages from you.
- Orally, but it's up to you to document these carefully in case you are ever challenged on them.
So why is it doubly important that Canadian business owners focus on obtaining express consent from their clients ASAP and not rely on implied? (Remember, there's a two-year window allowed for clients obtained after July 1, 2014).
Well, in the absence of 35-40% of your customers' ability to access the link to the physical mailing address and additional contact data present in a text message (remember, these people cannot access the internet with their phones), full compliance will most likely rest upon the obtaining of "express" consent.
Although this is not specifically dictated in the law, our correspondences with the Minister of Industry (via our MP) indicate this is very likely the way the government lawyers will account for this oversight.
CASL does make some exemptions to the consent and unsubscribe requirements, but for the most part, these do not apply to any business owner using SMS for commercial purposes, or service provider sending appointment notifications.
If there's one failing to CASL, it's that in some cases the law is ambiguous or unclear - especially when it pertains to communicating via text. Given the near-intimate relationships people have with their mobile devices, and their extreme sensitivity to messages that may be perceived as spam, we therefore highly recommend that you expedite your efforts to obtain full express consent from all your contacts as soon as possible - regardless of the sort of messages you intend to send. With CASL, it's always wise to err on the side of caution!
This is definitely something you want in effect long before July 2017, when your customers can take civil action against you for real or perceived violations of the law.
A credible SMS service provider will not only require a double opt in process be performed by all your contacts, it will log and store all "subscribe" and "unsubscribe" requests, protecting you from spurious spam complains.
Due to a 99% open rate, it's smart to use SMS / text messages to leverage your business and your other marketing channels. With the advent of CASL, this channel becomes even more powerful - since a fully compliant database is extremely qualified database. However, business owners who do not take prudent steps to ensure full compliance may find themselves where no business owner wants to be… in possible violation of the law.