Video: Canada’s Anti-Spam Laws and SMS / Text Marketing

Express Consent Under CASL

The first is Express Consent.

Express consent is pretty easy to understand; your customer provides you with explicit permission to send them marketing messages.

Express consent can be provided in a number of ways…

1. The first is digitially—in other words a client can sign a digital document or use a online form or subscribe to a marketing campaign through a handset initiated opt-in. For example if you have a Pizza shop and your client texts the word “PIZZA” to a number to get an instant coupon in exchange for regular marketing messages, that is considered express consent.
2. The second way express consent can be provided is by physically signing a document of some sort.
3. Lastly, it can also be given orally, although it will be up to you to document such permissions in case you are ever challenged on them.

So pretty simple, right?

Now let’s talk about the other type of consent allowed by CASL… implied consent.

Implied Consent Under CASL

Implied consent is based upon an existing business relationship.

But it’s not just any business relationship – it’s a business relationship where the last transaction is within the last two years.

So to confirm…

You have your client’s implied consent to send them marketing messages IF you have a business relationship with them, and IF the date of last transaction is within the last two years.

If the last transaction occurred outside of that two year period, you do not have the legal right to message them.

OK, it gets better…

Implied consent can expire.

Implied Consent Expires!

For example, if I come into your place of business and purchase something from you, you have my implied consent to send me marketing messages for a period of two years from the date of that transaction, after which your permission to so so will expire.

Unless…

I purchase something else from you during that two year period.

In that case, the two-year time period is reset to the date of the most recent transaction and the countdown beings again.

Now obviously, managing implied consent is complete logistical nightmare.

A Logistical Nightmare

When this law came out, business owners were completely freaked out by how easy it would be to violate the law—albeit inadvertently—and therefore be subject to huge fines and penalties.

Now, almost 5 years since CASL’s inception it appears that these concerns weren’t really warranted.

And let me tell you why I think that is…

Having implied consent to message your client doesn’t mean he or she doesn’t retain the right to opt out or unsubscribe from your messages at any time.

To be legal, all text messages sent in Canada need to have a one step unsubscribe option included. That’s the “reply STOP to end” that you see—or at least you should see—at the end of every commercial text message.

So if, during that 2-year permission period, I find your messages don’t provide value, or I’m no longer interested in what you’re offering, or I think you’re messaging me too often or whatever, I can unsubscribe by replying STOP.

Now, If I am still receiving your messages after the two-year permission period expires, then obviously they must still be providing value to me, or I would have unsubscribed ages ago, right?

So what does this mean?

Well under CASL, it’s pretty clear—you’re breaking the law if you’re messaging outside of the two-year permission period of implied consent.

But practically it means that you’re unlikely to run into any problems doing so, because the people who don’t want to hear from you will have unsubscribed ages ago, and the people who are still receiving your messages must find them valuable, and as a result, won’t be filing a complaint.

It’s inconceivable to me that a client who has been happily receiving your marketing messages for two years is going to be outraged when she receives a message at two years plus 1 day.

Of course, as I noted at the beginning of the video I’m not a lawyer and I am certainly not advising you to break the law, but I think it’s important to put this in proper context so you don’t get scared off by implied consent.

The Danger of Messaging under Implied Consent

Of course, implied consent is tricky business with text messages, because of the relationships people have with their phones.

Just because you have the legal right to message your clients and customers doesn’t mean they are going to appreciate it. In fact, one of the easiest ways to damage your brand, alienate your clients and generally piss people off is to start sending them text messages “out of the blue.”

That’s because unlike unwanted emails—which are pretty common and not particularly intrusive—text messages bypass your clients’ filters and end up right in their personal space.

Cell phones aren’t merely communication devices. They are the control centre of people’s lives. People have an intimate relationship with their phones. On average, they check them 150 times per day. Plus, text messages normally originate up from people in their immediate social circle. When they do not, it’s not a good thing.

If you are going to start messaging clients out of the blue based on implied consent, the first message you send is absolutely critical. Otherwise you risk alienating your clients and damaging your brand. If you need help with that initial message, just let us know—we’ll be happy to help. You can contact us here on our web site.

Alright everyone, there you have it; a quick discussion on Canada’s Anti-Spam Legislation and SMS Marketing in Canada. If you have questions or comments, please leave them below.

Thank you so much for watching.