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 emerging yet?
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 consent.
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 way.
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 implied consent?
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.
Next time: Content Requirements!