Issue #2 – Express vs. Implied Consent to receive a CEM
Canada’s new Anti-Spam law and regulations (“CASL”) come into effect on July 1, 2014. The purpose of CASL is to the limit the sending of commercial electronic messages (“CEMs”) without the consent of a recipient. In this second “CASL Countdown Alert”, I will highlight the important concept of consent to receive a CEM and the difference between express and implied consent.
Under CASL, it is prohibited to send or cause or permit to be sent a CEM unless:
the recipient has consented to receiving it, whether the consent is express or implied; and
the CEM contains all of the content required by CASL.
We shall focus on the consent question here and address the required content of CEMs in Alert #3.
CASL and its regulations recognize that certain facts and/or underlying relationships between the sender of a CEM and the recipient can either justify an exception to the requirement of consent (in very limited circumstances) or be used as a basis for implied consent to receive a CEM.
Implied consent means that the sender of a CEM does not have to secure the recipient’s express answer such as “YES, I agree to receive your CEMs” prior to sending that particular recipient a CEM. However, the reality is that CASL and its regulations create a legal regime in which express consent is the preferred option for most cases where consent is required.
In brief, CASL and its regulations list the following facts and/or underlying relationships as a basis for implied consent:
an existing business relationship;
an existing non-business relationship;
the CEM being sent is relevant to the recipient person’s business, role, functions or duties in a business or official capacity;
the recipient has conspicuously published an electronic address and such publication does not include a statement that the recipient person does not wish to receive unsolicited CEMs.
By way of example, CASL has attempted to define “existing business relationship” as follows:
"Existing Business Relationship” means a business relationship between the person to whom the message is sent and any of the other persons … arising from:
the purchase or lease of a product, goods, a service, land or an interest or right in land, within the two-year period immediately before the day on which the message was sent, by the person to whom the message is sent from any of those other persons;
the acceptance by the person to whom the message is sent, within the period referred to in paragraph (a), of a business, investment or gaming opportunity offered by any of those other persons;
the bartering of anything mentioned in paragraph (a) between the person to whom the message is sent and any of those other persons within the period referred to in that paragraph;
a written contract entered into between the person to whom the message is sent and any of those other persons in respect of a matter not referred to in any of paragraphs (a) to (c), if the contract is currently in existence or expired within the period referred to in paragraph (a); or
an inquiry or application, within the six-month period immediately before the day on which the message was sent, made by the person to whom the message is sent to any of those other persons, in respect of anything mentioned in any of paragraphs (a) to (c).
*Note the bold and underlined text above is intended to bring your attention to the time limits placed on the use of implied consent and to send CEMs to certain recipients.
In contrast, CASL does not place any time limits on the validity of express consent to receive a CEM. As a policy stance, Canada’s federal government has framed CASL and its regulations to encourage senders of CEMs to secure the express consent of recipients. In other words, express consent to receive a CEM, once granted by a recipient, is valid until that recipient expressly communicates its instructions to unsubscribe from the recipient list.
This is a powerful distinction between express and implied consent to receive a CEM and should be taken into consideration before implied consent is relied on by the sender of CEMs. That is, use of implied consent to send a CEM necessarily means that the sender is obligated to monitor the currency of the facts/underlying relationship on which implied consent is based.