How CASL Defines ‘Express Consent Versus Implied Consent’

by | Best Practices, Email Marketing

On July 1st, Canada’s new Anti-Spam Legislation (CASL) came into effect. Under CASL you need to have consent to send commercial electronic messages. Under CASL, a commercial electronic message is described as “a message that encourages participation in a commercial activity, including but not limited to: offering, advertising or promoting a product, a service or a person.”

Commercial electronic messages are considered to be emails, SMS text message and instant messaging.

The consent needed to send commercial electronic messages in Canada is defined in two ways: express consent and implied consent  The Government of Canada website provides the following explanation of what constitutes ‘Express Consent Versus Implied Consent’ under CASL:

Implied consent

Existing business relationship

  • The recipient has made, or enquired about, a purchase or lease of goods, services, land or interest in land, a written contract or the acceptance of a business, investment or gaming opportunity from you.

Existing non-business relationship

  • You are a registered charity, a political party or a candidate, and the recipient has provided you a gift, a donation or volunteer work.
  • You are a club, association or voluntary organization and the recipient is one of your members.

Recipient’s e-mail address was conspicuously published or sent to you

  • The address was disclosed without any restrictions and your message relates to the recipient’s functions or activities in a business or official capacity.

Time limit

  • Implied consent is generally time-limited
  • It is typically a period of 2 years after the event that starts the relationship (e.g. purchase of a good). For subscriptions or memberships, the period starts on the day the relationship ends.

Express consent

Valid consent given in writing or orally

  • The recipient gave you a positive or explicit indication of consent to receive commercial electronic messages.
  • Your request for consent set out clearly and simply the prescribed information.

Keep records

  • Keep records of how you obtained implied or express consent, since in both cases you have the onus to prove consent.

Time limit

  • Express consent is not time-limited, unless the recipient withdraws his or her consent.

**Check with the CASL website for specific conditions, legislation or regulations that may apply. 

The Infographic below reviews the information shown above.

Express consent versus implied consent under CASL

Express consent versus implied consent under CASL