CASL – Difference Between Express & Implied Consent?

Canada’s anti-spam legislation (CASL) is the federal law dealing with spam and other electronic threats. It is meant to protect Canadians while ensuring that businesses can compete in the global marketplace. CASL enforces an “opt-in” policy meaning in order to email an investor they must opt-in to receiving communications from you. CASL prohibits all commercial electronic messages (“CEMs”), including email and text, that are sent without proper consent. Anyone that sends a CEM to a consumer in Canada is subject to CASL.

Express consent means that a person has clearly agreed to receive a CEM, either in writing or orally. The recipient must take proactive action to indicate their express consent (in other words, express consent must be obtained through an opt-in mechanism, e.g. signing up at your website). Express consent is not time-limited: once express consent is obtained you are able to send CEMs until the recipient notifies you that they no longer want to receive them.

You may rely on implied consent for sending CEMs if it is done under certain conditions, as set out in section 10(9) of CASL.

This may include having an existing business relationship (EBR) based on a previous commercial transaction with the recipient; What is an existing business relationship (EBR)?

If you answer YES to any of the following questions, you may have an existing business relationship permitting to send CEMs for the period specified (either 2 years or six months following the last transaction date):

• Has the recipient made a purchase or lease of goods, services, within the two-year period immediately before the day on which the message was sent?
• Has the recipient accepted a business, investment, or gaming opportunity offered by you within two years immediately before the day on which the message was sent?
• Has the recipient made an inquiry or application on any of the items above within the six-month period immediately before the message was sent?
• Has the recipient entered into a written contract that is still in existence or expired within two years immediately before the day on which the message was sent?