Issue #2 – Express vs. Implied Consent to receive a
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
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
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
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
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
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.
NEXT WEEK – ISSUE #3: THE REQUIRED CONTENT OF
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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