No discussion of SMS marketing in Canada can be had without addressing CASL, or Canada’s Anti-Spam legislation, which became law on July 1, 2014. Business owners have 3 years to get their “houses” in order, because on July 1, 2017, CASL comes into “full effect.”
Yes… in 2017, CASL will allow for the right of private action, or the ability of your clients, prospects and customers to sue you for real and perceived violations of the law.
Update: The Federal Liberal government eliminated the right of private action from CASL, so this is no longer an issue.
What makes “a made in Canada mobile marketing solution” different than one originating in the U.S. (or anywhere else in the world for that matter), boils down to CASL requirements.
Ludicrous, Regulatory Overkill
The Globe & Mail called CASL, “ludicrous, regulatory overkill”, which does more to curtail the efforts of genuine businesses than prevent the “real” spammers – those folks who operate out of Eastern Europe and Asia and have absolutely no chance of being prosecuted.
To make matters worse, its fines and penalties are also some of the steepest in the world… up to $1 million for a first offense.
That being said, if you are looking for a SMS solution for your Canadian business, you need to be aware that Canada’s Anti-Spam legislation applies to text / SMS messages and you must insure that the provider you choose understands the rules and the laws as they apply. I can attest the fact that I have received texts from large Canadian companies whose messages are not in compliance with applicable laws.
What are rules as they apply to SMS Marketing?
In order to answer this, one must consider the origin of the subscriber…
1) If a client actively subscribes to your service via their mobile phone (called a “handset initiated opt in”): In this case, the differences are in the messaging only. CASL requires that all digital messages include a “one-step” unsubscribe option (i.e., “reply STOP to End”), something that is shared with U.S. laws.
However, it also requires that information be included that identifies the sender. This includes at minimum, a business name and physical address. Of course, since text messages are limited in character length, it is not possible or practical to include such information in the text, so CASL allows that this information can be accessible via a web link.
You can view a CASL compliant message to the right.
In this way, CASL is more restrictive than U.S. laws, which does not require such a link be present.
CASL does not account for the 30-40% of Canadians who do not have smartphones or dataplans (i.e., they are unable to surf the Internet on their phones), and for whom such a link would be inaccessible. This means Canadian business owners need to rely on obtaining “express” and not “implied” consent as it pertains to CASL from their clients in order to be in full compliance. More on this in a moment.
2) If your clients are imported into the SMS marketing service: In this case, Canadian law is more flexible than U.S. law. In the U.S., you need documented permission to reach out to your customers just to ask them if they want to receive text messages from you.
In Canada, however, business owners have their customers’ “implied” consent to contact them…
- For up to 2 years after the date of the last transaction, if that transaction took place after July 1, 2014.
- Up to 3 years if the last transaction took place before July 1, 2014.
If you contact your customers 1 day after this two-or-three year period, you are in violation of the law.
Here’s What You Need to Know about Implied Consent…
- Implied consent expires. That means you always need to track the status of your customers to ensure you do not violate the law by contacting them beyond the grace period.
- Every new transaction “resets” the clock on the two-year grace period for which you may contact your customer under “implied” consent. In other words, every new transaction becomes “day 1” of your new two-year grace period.
The way to get around the headaches associated with “implied” consent (i.e., constantly monitoring whether you are contacting your customers within the apporpriate 2 or 3 year grace period), is to obtain your customer’s “express” consent as it applies in the context of CASL.
“Express” consent means pretty much what it sounds like it does; your customer gives you “express” permission to contact them with marketing messages. Express consent can be given…
- Digitally (by clicking a button on a form requesting updates, intiating an opt on a form or SMS call to action and “double optining in”, or by digitally signing a document).
- Physically (by signing a “physical” document).
- Orally, although the burden of proving such permission will fall on you should you ever be challenged, so you will need to keep immaculate records to support oral permission.
Implied Consent Reality Check
On the surface, “implied consent” is more than a bit worrisome.
But how likely is it that a client or customer – after happily receiving your promotional messages for two years – becomes outraged by them on day 365 X 2 + 1?
Pretty slim, I’d say.
The fact of the matter is, clients or customers who are not interested in receiving your messages will opt out of them by clicking the unsubscribe link (all CASL compliant messages) long before the two year window is up.
Those who don’t must be still receiving value from your messages.
Where you have to be very careful is when you’re importing a database of clients for whom you have implied consent. If this consent window runs very close to the 2-year mark, and you annoy some of your clients with your mass texting broadcast, then it’s possible some of them could file a complaint and get you into some serious hot water.
SMS Marketing Canada; The Bottom Line
Obviously, the easiest way to market with SMS in Canada is to use a service that is familiar with the “ins” and “outs” of CASL, and is built to ensure compliance to the law.
Local Text Marketer’s outgoing text messages include both the one-step unsubscribe option and the link to indentifying information as required.
And as far as importing clients go – which is perfectly legal if you have the “implied” consent of your customers – our system queues your customers to an “invitation” process. In other words, when you add clients into our system, they must first confirm their interest in receiving SMS messages from you, and only those who do can be contacted.
Why do we do this?
First, by asking your customers to join your list and then having them take proactive steps to subscribe through a double-opt-in process, you are obtaining “express” consent in the context of CASL.
Bye-bye “implied” consent headaches.
Second, having “express” consent shields you from potential issues rising from the fact that a significant percentage of your audience cannot access the Internet with their phones, and accordingly, the link in your text messages that provides identifying information about the sender of the message. Also mandated by CASL.
If this all sounds like a monumental pain in the “you-know-what”, there is an easier solution.
Let us take care of it.
Seriously. We’ve dealt with the CASL headaches so you don’t have to!
If you have questions of any sort, please feel free to reach out, either by email, or if you like, you can also call us toll free, 1-877-403-2402.