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CASL - Implied Consent

Mark Kawabe - Friday, June 13, 2014

CASL Anti Spam LawThe sky may or may not fall on July 1, 2014 when CASL (the Canadian Anti Spam Law) comes into effect. Personally, I don't think there will be many changes with respect to B2B communications right away. Here's why.

CASL requires businesses to demonstrate they have either express or implied consent when sending Commercial Electronic Messages (CEM). Few businesses have obtained express consent to send CEM to everyone on their list, so it's likely your business will be sending to your list based on implied consent.

I'd like to talk about the notion of implied consent because I think there's a major exception in CASL that will allow most businesses the ability to continue operating "as is" without running afoul of the law. This major exception revolves around whether a recipient has "conspicuously published" or "disclosed" his or her electronic address. For the purpose of this discussion, we'll use an email address as the example electronic address.

What does it mean to have "conspicuously published" an email address? I think there are several possibilities.

  1. It's visible on your company website
  2. It's visible on social media sites
  3. It's visible on newspaper ads, billboards, flyers, brochures or vehicle advertising

If you have "disclosed" your email address, you may have done one of the following things:

  1. Printed it on your business cards,
  2. Included it as part of an email signature,
  3. Told someone your address verbally or over the phone.

If you have "conspicuously published" or "disclosed" your email address, you may be giving implied consent that you wish to be contacted for business purposes via email. If you did not indicate in any way that you do not wish to receive unsolicited CEMs via your email address, this may be enough to establish you are providing implied consent to received CEMs.

This has been referred to as the "business card exception". At networking events, you will often give people your business card which may have your email address on it. Unless you tell the recipient of your card not to send you CEMs, they can assume you have provided implied consent to receive messages from them. When that person's email newsletter hits your inbox the next day, you don't really have grounds for complaining. Thankfully, under CASL, you can simply unsubscribe from a mailing and the sender has to remove you from their list within 10 days.

Of course, the CEM you were sent had to have been relevant to your business, role, functions or duties in a business or official capacity and met the contact information requirements for it not to have been considered spam.

Many people I've spoken to are working on becoming compliant with CASL. I encourage everyone to do so. You will still be able to send relevant CEMs after July 1, 2014. You have three years to become fully compliant, so while you're sending messages based on implied consent, do your best to gain express consent from the recipients of your messages so you'll be in a good place come July 1, 2017.