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 sent.
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 theIncome Tax Act.
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 consent.