Last Updated: June 1, 2018
It is important that you obtain consent from your customers and prospective customers prior to sending text and email marketing messages using the IndivoMail service. Obtaining consent is not only common courtesy, but it is required by anti-spam and other privacy and consumer protection laws. The consequences for not following the rules can be quite severe, with penalties in the U.S. of $500-$1,500 per message in the case of text messages and penalties of up to $16,000 per message in the case of emails. In Canada, penalties range from $1-10 Million, and in both countries, individuals can bring private rights of actions against companies for certain violations. It is your responsibility to ensure that all necessary consents have been obtained and recorded in compliance with applicable law. This note is provided as a courtesy and is not intended as legal advice. You should consult with your own legal counsel to ensure you are in compliance with applicable laws.
In the U.S., senders of commercial emails are not required to obtain express consent prior to sending their messages. Instead, the CAN-SPAM Act requires senders to provide an opportunity for recipients to opt out of receiving future commercial emails and to honor that opt-out request within 10 business days. To that end, commercial email messages must include a clear and conspicuous instruction that explains how the recipient can opt out of receiving future emails from the sender, such as a return email address or another easy Internet-based way to allow people to communicate their choice. Senders may create a menu to allow a recipient to opt out of certain types of messages, but one of the options must be to opt out of all commercial messages from the sender. When sending commercial emails to residents of Canada, senders are required to obtain prior consent before sending their messages. In limited circumstances — such as when you have an existing business relationship with the recipient — this consent can be implied. But most often, express prior consent to send an email is required. This means that a person must affirmatively state a desire to receive emails from you; pre-checked boxes will not suffice. And you must maintain records of all consents you obtain. In addition to an opt-out requirement, both the CAN-SPAM Act and CASL impose various content requirements for commercial emails, such as accurately identifying the sender of the email, identifying the email as an advertisement, and including opt-out instructions. These content requirements are not limited to just bulk email, but apply to all commercial messages. To help ensure that you comply with the law and best practices of the jurisdictions where you send emails, you should also do the following:
II. Text Messages
A. What type of consent is required?
The consent required for text messages differs under U.S. law depending on whether the message is an informational text message or a marketing text message. If the message has any content that might be viewed as advertising or promoting any products or services then it should be treated as a marketing text message.
1. Informational Text Messages
For purely informational, non-marketing text messages, U.S. law requires that the recipient provide prior express consent. Prior express consent can be obtained in a variety of ways, including by implication when a person provides their phone number under circumstances indicating they intended to agree to be contacted using that number. Thus, for purely informational text messages, it is easier to demonstrate that the legally required consent has been obtained.
2. Marketing Text Messages
For marketing text messages, U.S. law requires that the recipient provide prior express written consent. Prior express written consent can be obtained through a signed, written agreement that clearly and conspicuously discloses to the prospective message recipient:
Text Message Best Practices
Here are some tips for best practices when it comes to text messages: