Q&A Transactional emails with unsubscribes?

I’ve received this question about Transactional emails under CASL a few times and I had to really dig around and talk to a number of people to come up with a reasonable explanation as it’s quite complicated and many people seem to be confused.

A: My interpretation of the requirement is YES Transactional emails under CASL require an unsubscribe link to stop further “Commercial Email Messages” (CEMs) to the recipient. I believe where people are getting confused revolves around the exemption to Section 6’s consent to send requirement. Remember transactional emails do not require consent to send as long as they meet the proper definition under CASL. Here is the exemption for transactional emails as per the legislation:

Exception
6 (6) Paragraph (1)(a) does not apply to a commercial electronic message that solely:

(a) provides a quote or estimate for the supply of a product, goods, a service, land or an interest or right in land, if the quote or estimate was requested by the person to whom the message is sent;
(b) facilitates, completes or confirms a commercial transaction that the person to whom the message is sent previously agreed to enter into with the person who sent the message or the person — if different — on whose behalf it is sent;
(c) provides warranty information, product recall information or safety or security information about a product, goods or a service that the person to whom the message is sent uses, has used or has purchased;
(d) provides notification of factual information about
(i) the ongoing use or ongoing purchase by the person to whom the message is sent of a product, goods or a service offered under a subscription, membership, account, loan or similar relationship by the person who sent the message or the person — if different — on whose behalf it is sent, or
(ii) the ongoing subscription, membership, account, loan or similar relationship of the person to whom the message is sent;
(e) provides information directly related to an employment relationship or related benefit plan in which the person to whom the message is sent is currently involved, is currently participating or is currently enrolled;
(f) delivers a product, goods or a service, including product updates or upgrades, that the person to whom the message is sent is entitled to receive under the terms of a transaction that they have previously entered into with the person who sent the message or the person — if different — on whose behalf it is sent; or
(g) communicates for a purpose specified in the regulations

Now if we go back and look specifically at Section 6 (1) (a) of the act we see the following

6.(1) It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless

(a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; and
(b) the message complies with subsection (2).

This shows that the section in question 6(1)(a) covers the need for consent (express or implied) however Paragraph 6(1)(b) and 6(2) (a-c) [shown below] discuss the requirements for Identification, Contact information and an unsubscribe mechanism.

(2) The message must be in a form that conforms to the prescribed requirements and must

(a) set out prescribed information that identifies the person who sent the message and the person — if different — on whose behalf it is sent;
(b) set out information enabling the person to whom the message is sent to readily contact one of the persons referred to in paragraph (a); and
(c) set out an unsubscribe mechanism in accordance with subsection 11(1).

For reference here is Subsection 11:

11 (1) The unsubscribe mechanism referred to in paragraph 6(2)(c) must

(a) enable the person to whom the commercial electronic message is sent to indicate, at no cost to them, the wish to no longer receive any commercial electronic messages, or any specified class of such messages, from the person who sent the message or the person — if different — on whose behalf the message is sent, using
(i) the same electronic means by which the message was sent, or
(ii) if using those means is not practicable, any other electronic means that will enable the person to indicate the wish; and
(b) specify an electronic address, or link to a page on the World Wide Web that can be accessed through a web browser, to which the indication may be sent.

If you have any different interpretations or comments on this I would be happy to hear them in the comments below.

UPDATE: In summary the unsubscribe is required to be from future CEMs, transactional/relationship messages do not require consent to send (as described above). You should update the unsubscribe footers on your transactional emails to note that unsubscribing will only impact commercial emails for clarity to the subscriber.