As noted in a recent blog, Canada's anti-spam legislation,
generally known as CASL, came into effect in large part on July 1,
2014. We thought it would be helpful to remind people of some of
CASL's key components.
Today we will look at consents required under CASL. Please keep in mind that there are many details not included in
this overview and that, like most things in life, the specific
needs depend on the specific facts.
What does "express consent" mean? How should we
obtain express consent? Are there any best practices that are
The CRTC states that express consent for purposes of CASL means
"opt‑in" consent – that is, a person actively
did something to signify that they consent to receive CEMs.
Examples include checking a box (that was unchecked to begin with)
or signing a form. Consent cannot be buried in terms and
conditions, and a request for consent must be clearly identified to
the person from whom the consent is being sought. The request for
consent must clearly and simply state the purpose for which consent
is being sought (i.e., to receive CEMs). Opt‑out consent
‑ for example, having a box pre‑checked to indicate
that someone consents to receiving CEMs (so that he or she must
un‑check the box to decline) ‑ is NOT express
One of the best practices to use to obtain express consent is to
use an unchecked box and to request someone to check it to indicate
consent to receiving CEMs from the sender.
Can someone give express consent orally?
Yes. The CRTC has stated that oral consent can suffice as
express consent under CASL. For purposes of audit and demonstrating
compliance, the association should establish ways to record and
verify consents given orally, if it wants to obtain consent that
Does express consent ever expire?
No. Express consent is the "gold standard" of consents
under CASL because it does not expire unless someone chooses to
unsubscribe or withdraw consent.
What if the association has been sending a recipient CEMs for
years, there has always been an unsubscribe mechanism, and the
recipient has not unsubscribed – does that mean there is
No. A failure to unsubscribe or indicate that one does not wish
to receive CEMs does not mean that consent is implied. Implied
consent is limited to certain circumstances under CASL.
There are many nuances to CASL and its application. We have a
team of experts at BLG and would be happy to assist with an audit
of your organization's CASL processes and policies.
Software license agreements generally require the customer to pay fees for the software license and related services, which fees are usually based upon the duration of the license and the manner in which the customer is allowed to use the software, together with applicable taxes and withholdings.
In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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