SPECIAL NOTE: OBTAINING CONSENT FOR COMMERCIAL TEXTS AND EMAILS
It's crucial that you obtain consent from your customers and potential customers before sending any text or email marketing messages using the Capio Pro service. Getting consent is not just a common courtesy, but it's also required by anti-spam and other privacy and consumer protection laws.
The consequences for failing to follow these rules can be severe. In the U.S., the penalties can range from $500 to $1,500 per text message and up to $16,000 per email. In Canada, the penalties can reach as high as $1-10 million. Additionally, individuals may be able to take private legal action against companies for certain violations in both countries.
Ensuring that you have obtained and documented all necessary consents in compliance with applicable laws is your responsibility. This note is provided for informational purposes only and should not be considered legal advice. We recommend consulting with your own legal counsel to ensure you are fully compliant with all relevant laws and regulations.
I. Email
In the United States, senders of commercial emails are not required to obtain explicit consent before sending their messages. Instead, the CAN-SPAM Act mandates that senders provide recipients with an opportunity to opt-out of receiving future commercial emails, and that they honor those opt-out requests within 10 business days. To comply, commercial email messages must include clear and prominent instructions explaining how the recipient can opt-out of receiving future emails from the sender, such as through a return email address or other easy internet-based method.
When sending commercial emails to residents of Canada, senders are generally required to obtain prior consent before doing so. In limited situations, such as existing business relationships, this consent can be implied.
However, in most cases, express prior consent is necessary - meaning the recipient must affirmatively indicate a desire to receive emails, with pre-checked boxes being insufficient. Senders must also maintain records of all consents obtained.
In addition to the opt-out requirement, both the CAN-SPAM Act and Canada's anti-spam law (CASL) impose various content requirements for commercial emails, such as accurately identifying the sender, indicating the message is an advertisement, and including opt-out instructions. These requirements apply broadly to all commercial messages, not just bulk emails.
To ensure compliance, senders should:
Use accurate header information to identify the business as the originator
Avoid deceptive subject lines
Clearly indicate the message is an advertisement
Include valid contact information, including a physical address
Consult legal counsel to stay up-to-date on changing requirements
Provide a clear and easy opt-out mechanism
Promptly honor all opt-out requests
Adhering to these guidelines can help ensure commercial email campaigns comply with the relevant laws and best practices in the jurisdictions where messages are sent.
II. Text Messages
A. What type of consent is required?
The consent requirements for text messages under U.S. law depend on whether the message is informational or marketing-related. If the message contains any content that could be viewed as advertising or promoting products/services, it should be treated as a marketing text message.
Informational Text Messages: For purely informational, non-marketing text messages, U.S. law requires the recipient to provide prior express consent. This consent can be obtained in various ways, including by implication when a person provides their phone number in a context indicating they agreed to be contacted. So for informational texts, it is generally easier to demonstrate the legally required consent has been obtained.
Marketing Text Messages: For marketing text messages, U.S. law mandates the recipient provide prior express written consent. This can be obtained through a signed, written agreement that clearly and prominently discloses to the prospective recipient:
The recipient authorizes the sender to deliver marketing texts using an autodialer to the designated phone number
Consent is not required as a condition of purchasing any products or services
The required written signature can be obtained through various means allowed by applicable state or federal law, such as email, website form, text message, telephone key press, or voice recording.
Senders must carefully distinguish between informational and marketing texts, and ensure they obtain the proper consent for each type of message to comply with U.S. regulations.
B. Text Message Best Practices
Here are some best practices to consider for text message communications:
To maintain maximum flexibility in sending various types of messages, it's best to obtain prior express written consent from all recipients on your subscriber list. This consent standard meets the legal requirements.
Only rely on prior express consent if you are certain all your messages will be purely informational in nature, with no promotional or marketing content.
Never assume you have consent to send a text message. Carefully obtain and maintain records of all consents, whether in the form of prior express consent or prior express written consent.
Consult with legal counsel to ensure your consent-gathering methods are valid and compliant with the latest legal requirements, as these are frequently updated by authorities.
Do not send text messages to any purchased or acquired lists unless you have verified the recipients have consented to receive messages specifically from your organization, or the messages will otherwise comply with applicable laws.
Always provide recipients a simple way to opt out of receiving future messages, such as by replying "stop." Promptly remove anyone who opts out from your database.
Consider subscribing to a service that tracks and alerts you if phone numbers in your database get reassigned, as you may have liability for messages sent to a number now belonging to a different person.
Adhering to these best practices can help ensure your text messaging activities remain compliant and respectful of recipient preferences.