In our last CASL FAQ, we asked "What Are the General Requirements to Comply with CASL?". We mentioned that the first question an organization needs to ask itself is whether it has consent to send out the commercial electronic message. Organizations can rely on consent that is express or implied. This FAQ discusses express consent. We will address implied consent in another FAQ.
If you are obtaining express consent before July 1, 2014 – the date CASL comes into force – you do not need to include all the information that is required under Canada’s anti-spam legislation (“CASL”). You will still need to make sure that when you obtain express consent, you clearly and simply set out the purpose(s) for which you are seeking consent. If you are obtaining express consent on or after July 1, 2014, you will need to set out clearly and simply: (i) the purpose(s) for which consent is sought; (ii) certain identity and contact information of your organization and any person whose behalf the consent is sought, including a statement indicating which person is seeking consent and which person on whose behalf consent is sought; and (iii) a statement that the recipient may withdraw consent. For a person to provide express consent, s/he must take a positive action to indicate that s/he is providing consent. For example, having someone check off a box on a webpage is acceptable. Note, however, that having that box pre-checked will not result in express consent being obtained. Express consent also may be obtained orally. With all express consent, it will be up to the organization to prove that it obtained consent. Therefore, you will need to make sure you can prove that consent was obtained (or that you are able to rely on implied consent or an exception under CASL).