In our last CASL FAQ, we asked "
How Can I Obtain Express Consent for Commercial Electronic
Messages?". In this FAQ, we mention some situations when
an organization can rely on implied consent. They are limited in
nature and organizations will need to pay careful attention to
Canada's anti-spam legislation ("CASL") when trying
to rely on implied consent.
For example, organizations can send a
commercial electronic message ("CEM") to a person who
the organization has an "existing business relationship"
with. Only a few situations fall under the definition of an
"existing business relationship". This includes where
there is a business relationship between the recipient and the
sender arising from the purchase of a product, goods or a service
within the 2-year period immediately before the day on which the
CEM was sent, or arising from an inquiry or application within the
6-month period immediately before the day on which the CEM was
Implied consent can also arise from an "existing
non-business relationship". There are only a few situations
that fall under this type of relationship. This includes where
there is a non-business relationship between the recipient and the
sender arising from a donation or gift that was made by the
recipient within the 2-year period immediately before the day on
which the CEM was sent provided that the sender is a registered
charity as defined in section 248(1) of the Income Tax
CASL also permits organizations to send a CEM to a recipient who
has conspicuously published his or her electronic address, provided
that there is no statement that the person does not wish to receive
unsolicited CEMs at the electronic address and the message is
relevant to the person's business, role, functions or duties in
a business or official capacity. Similarly, organizations can send
a CEM to a recipient who has disclosed his or her electronic
address, provided that the recipient hasn't indicated a wish
not to receive unsolicited CEMs at the electronic message and the
message is relevant to the person's business, role, functions
or duties in a business or official capacity.
These are just some examples illustrating when an organization
may be able to send a CEM without having express consent. Even if
you are able to rely on implied consent, remember that you will
still need to set out the prescribed information in your CEM
including the unsubscribe mechanism. Moreover, your organization
should consider whether relying on implied consent is sufficient
for the organization in the long run. Having express consent
increases the likelihood of longevity when sending out a CEM, and
your organization would then not need to ensure that a CEM is being
sent within the prescribed time period when relying on implied
The use of electronic signatures is becoming increasingly commonplace in commercial transactions, as individuals and businesses capitalize on the administrative efficiency afforded by today’s digital world.
After several months of consultation and deliberations, the Organisation for Economic Co-operation and Development rendered public a revised draft Guidance on Due Diligence for Responsible Business Conduct.
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