DISCLAIMER: The information provided below is not legal advice and is for general informational purposes only. You must obtain advice from a legal council on SMS Compliance for CASL as you assume all responsibility for all legal matters.
In today’s digital landscape, communicating with your audience through email and SMS is essential. However, it comes with serious compliance responsibilities. One of the strictest anti-spam laws in the world, Canada’s Anti-Spam Legislation (CASL), outlines specific rules for how businesses can send commercial electronic messages (CEMs) to Canadian recipients.
If your business markets to Canadian customers or operates in Canada, understanding CASL and staying compliant is crucial. This article explains what CASL is, its requirements, and how you can effectively meet them for the purpose of Canadian business text messaging.
What Is CASL?
Canada’s Anti-Spam Legislation (CASL) is a federal law that regulates the sending of commercial electronic messages. These include emails, text messages, and even social media messages. CASL came into effect on July 1, 2014, with additional provisions phased in through 2015 and 2017.
CASL was created to:
- Protect consumers from unsolicited digital communications
- Prevent misleading or deceptive marketing practices
- Foster trust in electronic communication
The law is enforced by three main agencies:
- Canadian Radio-television and Telecommunications Commission (CRTC)
- Competition Bureau
- Office of the Privacy Commissioner of Canada
What Qualifies as a Commercial Electronic Message (CEM)?
A Commercial Electronic Message (CEM) is any electronic message that encourages participation in a commercial activity. This definition is intentionally broad under CASL, and it applies regardless of whether there is an expectation of profit. If a message contains any form of promotional content, sales messaging, or marketing intent, it likely qualifies as a CEM.
Types of Messages Considered CEMs
CEMs include, but are not limited to:
- Emails promoting a product or service
- SMS or text messages offering a discount or coupon
- Messages announcing a sale or limited-time offer
- Invitations to webinars, events, or contests with a commercial objective
- Newsletters that include promotional banners, product features, or sponsored content
- Social media direct messages sent for business promotion
Even if the message's main content is informational, it can still qualify as a CEM if it contains a secondary commercial purpose. For example, a newsletter sharing industry insights might also include links to your latest product launch or a call-to-action to book a consultation. This blend of content still meets the definition of a CEM.
The Role of Intention in CASL
Under CASL, it’s not just about the format of the message. It’s about the intent behind it. If the purpose is to advertise, promote, or solicit business, the message is considered commercial.
To help clarify, the Canadian Radio-television and Telecommunications Commission (CRTC) outlines three main indicators that a message is a CEM:
- It promotes a product, service, or brand
- It contains marketing language or persuasive calls-to-action
- It provides a way to conduct a commercial transaction (e.g., a link to purchase or register)
If any of these elements are present, the message is very likely a CEM and must comply with CASL.
Messages That May Not Be CEMs
Some electronic messages are not classified as CEMs if they:
- Are sent solely for informational purposes without any commercial content
- Are personal communications between friends or family
- Involve internal communications within a business or organization (e.g., between employees)
- Are sent to fulfill a legal or contractual obligation, such as sending a receipt or account notification
Still, businesses should be cautious. If a message contains even subtle marketing elements, such as a branded signature with a promotional tagline, it may fall under the CEM umbrella.
The Three Core Requirements of CASL
To legally send a commercial electronic message under CASL, you must follow three essential requirements:
1. Obtain Consent
There are two types of consent under CASL:
Express Consent: The recipient has clearly agreed to receive messages from your business. This might involve checking an opt-in box, signing up through a form, or texting a keyword to a number. Click here to learn how to get consent to send text messages to customers.
Implied Consent: There is an existing business relationship, such as a recent purchase or inquiry. It can also apply when someone has publicly listed their contact information and your message is relevant to their role.
Although implied consent may be valid in some cases, express consent is always the safer and more reliable approach. Businesses should keep clear records showing when and how consent was obtained.
2. Identify Yourself Clearly
Your messages must clearly state who is sending them. This includes:
- Your business name or organization name
- A physical mailing address
- One other method of contact, such as a phone number, email address, or website
This ensures the recipient can identify and contact you if needed.
3. Include an Unsubscribe Option
Every commercial electronic message must include a clear and easy way for recipients to unsubscribe. This option should:
- Be simple and accessible
- Remain valid for at least 60 days after the message is sent
- Be processed within 10 business days
Providing this option is not just best practice. It is a legal requirement.
CASL and SMS Text Messaging
CASL fully applies to text messages. If you are sending promotional texts, event invitations, or announcements to Canadian mobile numbers, you must obtain proper consent and follow the identification and unsubscribe requirements.
Here is an example of compliant SMS opt-in language:
By providing your phone number, you agree to receive promotional texts from [Business Name]. Message and data rates may apply. Text STOP to unsubscribe.
And a sample initial message might be:
Thanks for signing up! Get 15% off your first order. Message and data rates may apply. Reply STOP to unsubscribe.
What Happens if You Don’t Comply with CASL?
CASL violations can result in significant financial penalties. These include:
- Fines of up to 1 million Canadian dollars per violation for individuals
- Fines of up to 10 million Canadian dollars per violation for businesses
The CRTC has already issued several high-profile penalties for non-compliant email and text message campaigns.
How to Stay Compliant with CASL
Here is a practical checklist to help your business follow CASL guidelines:
- Use clear opt-in methods and collect express consent
- Record details of how and when consent was given
- Identify your business clearly in every message
- Include a simple and working unsubscribe option
- Act promptly on unsubscribe requests
- Train your team on CASL requirements
- Review your marketing platforms and automation tools to ensure compliance
Are There Any Exemptions?
CASL includes a few exemptions. Some messages do not require consent, such as:
- Responses to a customer inquiry or complaint
- Messages between employees of the same company
- Communications enforcing a legal obligation or rights
- Fundraising messages from registered charities
Even if a message qualifies for exemption, it is still wise to follow CASL best practices.
Final Thoughts
Canada’s Anti-Spam Legislation may seem complex, but it is built around common sense principles: get consent, be transparent, and respect your audience’s preferences. By implementing the right practices, your business can avoid penalties, maintain trust, and create more effective communication strategies.
