If you give someone your number, you can expect that the other person will call you — or send a text – maybe in California, but very soon this will not be sufficient in Canada. David Roberts sued PayPal, of which he was a customer, for what he claimed was a violation of his rights under the federal Telephone Consumer Protection Act. PayPal sent him an unsolicited text message advertising its services: Roberts v PayPal Inc (ND Cal, 30 May 2013). PayPal pointed to the user agreement which Roberts had agreed to (but hadn’t read): as originally drafted, it said that PayPal would communicate with its customers only by e-mail and postings on its website, but there was also a clause saying the agreement could be amended at any time without notice — which is exactly what the company later did, adding a reference to autodialled telephone calls.
The judge agreed with PayPal that this was a complete defence (‘calls’ for TCPA purposes being taken to include text messages sent to a person’s telephone). There was another reason to grant summary judgment in PayPal’s favour: Roberts had added his mobile number to his account profile.
With the coming into force of Canada’s Anti-Spam Legislation or CASL, which may only be in 2014r, consent to send a Commercial Electronic Message or CEM, which will include text messages, must be express and very specific information is must be provided. A request for consent may be obtained orally or in writing, but must include the following:
- the name by which the person seeking consent carries on business, if different from their name, if not, the name of the person seeking consent;
- if the consent is sought on behalf of another person, the name by which the person on whose behalf consent is sought carries on business, if different from their name, if not, the name of the person on whose behalf consent is sought;
- if consent is sought on behalf of another person, a statement indicating which person is seeking consent and which person on whose behalf consent is sought; and
- the mailing address, and either a telephone number providing access to an agent or a voice messaging system, an email address or a web address of the person seeking consent or, if different, the person on whose behalf consent is sought; and
- a statement indicating that the person whose consent is sought can withdraw their consent.
These specific requirements are set out in the Electronic Commerce Protection Regulations (CRTC), SOR/2012-36
Would a contract such as the one at issue in Roberts meet these criteria? Probably not. In Guidelines issued by the CRTC, the Commission issued the following statement, “The Commission considers that requests for consent contemplated above must not be subsumed in, or bundled with, requests for consent to the general terms and conditions of use or sale. The underlying objective is that the specific requests for consent in question must be clearly identified to the persons from whom the consent is being sought. For example, persons must be able to grant their consent to the terms and conditions of use or sale while, for instance, refusing to grant their consent for receiving CEMs.”