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:
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.
- 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.
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 of how you obtained implied or express consent, since in both cases you have the onus to prove consent.
- 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.