What Every Commercial Email and Text Needs Under CASL

Consent gets you permission to send. These rules decide what the message must contain once you do. They are the easy part of CASL, which is exactly why getting them wrong is so annoying. It is the legal equivalent of locking yourself out of the car with the engine running.

Section 6(2) of the Act and section 2 of the CRTC regulations (SOR/2012-36) require:

• The name you carry on business under, or your own name if you do not use a business name.
• If you send on behalf of someone else, their name too, and a statement of who is sending for whom.
• A mailing address. Always.
• One of: a phone number that reaches a person or a voicemail, an email address, or a web address.

The contact details must stay valid for at least 60 days after the message is sent (section 6(3)), and all of it has to be set out clearly and prominently (SOR/2012-36, section 3). Grey six-point text under a gif of a dancing taco is a bold interpretation of "prominently".

Agencies and freelancers sending for a client: the "on behalf of" rule is yours. Name both businesses.

Section 11 of the Act says the unsubscribe mechanism must:

• Let the person opt out at no cost.
• Use the same electronic means the message came by, or another electronic means if that is not practicable.
• Give an email address or a web link where the request can be sent.
• Stay valid for at least 60 days after the message is sent.
• Be honoured without delay, and no later than 10 business days, with no further action from the person.

The regulations add that it must be readily performed. A login screen, a survey about why they are leaving, or a page that asks them to type their email address and solve a puzzle about traffic lights all make it harder than it needs to be.

This is the part regulators have actually cited. When Gap agreed to pay $200,000 in 2021, the CRTC said its messages did not consistently include an unsubscribe mechanism, or one that could easily be performed. More in the fines guide.

CASL defines an electronic message to include text messages, and a telephone account counts as an electronic address. So promotional texts need consent, identification and an unsubscribe, just like email.

The space problem has an official answer. When it is not practicable to include the identification details and the unsubscribe in the message itself, section 2(2) of SOR/2012-36 lets you put them on a web page, as long as the message has a clear and prominent link to it and the page is free to reach.

Automated sequences are where CASL problems hide, because nobody reads the 14th email in a sequence they set up two years ago. A few things to check:

• A reply to someone's own inquiry is exempt. The third follow-up a week later that pitches a package is a commercial message, and it needs consent. An inquiry gives you six months of implied consent, not forever.
• Unsubscribes have to reach every system that sends. Someone who opts out of the newsletter should not keep getting promotional texts from the booking tool.
• Messages written or sent by an AI tool are still your messages. The Act also makes businesses liable for what their employees and agents send.
• A live phone conversation, including one with your receptionist, sits outside these message rules. A follow-up text after the call does not.

Under section 6(6) of the Act, consent is not needed when the message consists solely of:

• A quote or estimate the person asked for.
• Facilitating, completing or confirming a transaction they agreed to.
• Warranty, product recall, safety or security information.
• Factual information about their subscription, membership, account or loan.
• Information about an employment relationship or benefit plan they are part of.
• Delivering a product, update or upgrade they are entitled to.

The identification and unsubscribe rules still apply to these. And "solely" means solely. Add a promotion and the message becomes commercial in the ordinary way.