11. MAILINGS AND NEWSLETTERS

Presents the framework surrounding communications with the user (emails, newsletters, instant alerts, etc.)

1.1 What’s a newsletter?

Newsletters, whose content can vary from informative to promotional to a mixture of both, are a means of maintaining regular or occasional contact with users.

From the moment a company draws on its database to contact its users, communications are considered “commercial electronic messages” in the eyes of the law, even if their content is purely informative.

1.2 Are commercial electronic messages governed by law?

Commercial electronic messages are governed by anti-spam legislation. These laws cover the general public without specific provisions for children.

1.3 What’s the difference between “commercial electronic messages” and “spam”?

A commercial electronic message is a message whose purpose is to encourage participation in a commercial activity by transmitting information on the product (i.e. the platform).

Spam is an unsolicited commercial electronic message.

In general, to avoid having your newsletter considered as spam, you must meet the following criteria (see Regulations for further details):

  1. Obtain parental consent
  2. Identify your company properly in the message
  3. Include an unsubscribe mechanism

1.4  Consent and commercial electronic messages (opt-in/opt-out)

Users must consent to receiving commercial electronic messages. There are three types of consent:

  • Express, explicit or positive (opt-in): the user must take concrete action to subscribe to the mailing list (e.g. complete a subscription form). Consent is valid until the user makes an unsubscribe request.
  • Implied, tacit or inferred: based on an existing business relationship with the user (e.g. if the user has contacted you to request information). Valid for a limited period: you must obtain express consent before this period expires.
  • Negative or passive (opt-out): users must take action to inform the sender that they do not wish to receive commercial electronic messages.

Generally speaking, express consent is preferred. Note that this entails providing separate consent to the sender of each commercial electronic message. Lines that “bundle” consent (e.g. “Check this box to receive our newsletter as well as those of our partners”) are therefore to be avoided.

1.5 Unsubscribe mechanisms

Commercial electronic messages must offer users the means to cancel their subscription. The unsubscribe mechanism must be stated in clear terms, be visibly prominent and easy to use: it shouldn’t involve more than two steps. For example:

  • An “unsubscribe” link at the bottom of the newsletter, which opens a window where the user can check to confirm cancellation of their subscription
  • A text message containing the word “STOP”

Each country has regulations governing commercial electronic messages. While there are minor variations, the legislation is essentially similar and aims to protect the public against spam by providing a legal framework for online commercial transactions. Note that anti-spam laws do not contain specific provisions for children. Generally, whenever you contact your users and/or their parents, your message must touch on the following.

  1. User consent: include a statement specifying that consent can be revoked at any time.
  2. Identification: you must clearly identify yourself and provide a method through which the recipient can readily contact you.
  3. Unsubscribe mechanism: unsubscribe requests must be processed promptly.

CANADA

Canada’s Anti-Spam Legislation

CASL applies to all commercial electronic messages (email, instant messaging, SMS, etc.) sent to Canadians. Its approach is based on obtaining the user’s express consent. Implied consent is acceptable in some cases but is generally time-limited. You must be able to show how you obtained consent from each user.

**QUÉBEC**

Québec’s Consumer Protection Act prohibits commercial advertising directed at children under 13 years of age, barring certain exceptions prescribed by regulation. Pay close attention to the content of your commercial electronic messages to avoid having them considered as advertising. For example, you cannot promote a subscription to your platform in a newsletter aimed at Québec children. For more information, see Backgrounder Embedded Advertising.

Additional information:

UNITED STATES

  1. The CAN-SPAM (Controlling the Assault of Non-Solicited Pornography And Marketing) Act applies to emails that promote a product or service, including web platform content. Its approach is based on negative consent, meaning that a company can send email offers until the recipient (the user) signals that they no longer wish to receive them. Email offers must be clearly identified as ads.
  1. The Children’s Online Privacy Protection Act (COPPA) provides that while there are some exceptions for mobile apps, in most cases, if you want to send push notifications, you need to obtain parental consent. This is because the contact information gathered from the mobile device to send the alerts constitutes personal information.

Additional information:

EUROPEAN UNION & FRANCE

The Directive on Privacy and Electronic Communications (also known as the E-Privacy Directive) advocates express consent whereby users must signal their consent prior to receiving your commercial electronic messages. Implied consent is acceptable provided each message contains an unsubscribe mechanism.

Additional information:

Directive on Privacy and Electronic Communications

AUSTRALIA

The Spam Act targets commercial electronic messages that originate or are commissioned in Australia or are sent from an “Australian link.” It is based on express consent but accepts implied (inferred) consent under certain conditions. Companies must be able to show how they obtained the consent of each user they contact.

Additional information:

Australian Government, Spam Act 2003: An overview for business

Apple App Store/Amazon Appstore

  • You must obtain the user’s consent to send push notifications.
  • It is prohibited to use push notifications or real-time alerts to send spam, advertisements or promotional offers.
  • Do not abuse push notifications: send them at a reasonable frequency.

Additional information:

Amazon Distribution and Service Agreement

Apple Developer Guidelines

The Canadian Marketing Association lays the groundwork for industry self-regulation through its Code of Ethics and Standards of Practice. The CMA states that mailing list subscription must comply with the requirements of Canada’s Anti-Spam Legislation:

  • Emails and text messages: do not send marketing communications without first obtaining the recipient’s express or implicit consent.
  • Internal do-not-contact list: at the consumer’s request, promptly add email addresses and cell phone numbers to your internal do-not-contact list and cease all marketing to those addresses/numbers within 10 working days.

Additional information: consult section N4 of the Code of Ethics and Standards of Practice

  • Mailing list subscription involves collecting the child’s email address, which is a form of personal information. Since this is considered sensitive information, you are advised to obtain parental consent before starting to send commercial electronic messages to a child.
  • Always favour express consent: it’s the most transparent form and remains valid until the user decides to unsubscribe.
  • Indicate the frequency of your mailouts or messages so that users clearly understand what they are consenting to (e.g. say whether your newsletter is monthly, weekly or daily).
  • If possible, allow users to define the frequency with which they receive your messages.
  • Clearly identify your company in each message (contact info and physical address).
  • Your unsubscribe mechanism must be simple and efficient: one click should be all it takes to cancel subscription to a mailing list.
  • Send an automated unsubscribe confirmation message.
  • If you issue a range of communications (e.g. weekly newsletter, occasional notifications for special events, etc.), you can create a “consent menu” where users select the types of messages they wish to receive.
  • *United States: Careful! Some states have their own anti-spam legislation that diverges from the federal framework.

Bibliography.