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September 16, 2021

Canada’s federal anti-spam legislation (CASL), which is one of the strictest anti-spam law regimes in the world, applies to commercial electronic messages (CEMs) that encourage participation in a commercial activity.  While CASL was passed more than seven years ago, there remain a number of common misperceptions relating to consent under CASL, including the distinction between express consent, implied consent and what kind of consent is needed to share electronic addresses with third parties.

Below is a discussion of the basic CASL requirements for consent and some of the most common consent-related misconceptions we see in our practice (for more information, see: Anti-Spam Errors).

EXPRESS CONSENT, IMPLIED CONSENT AND EXEMPTIONS

In general, one of the most common CASL consent request mistakes by many companies and other organizations that we advise is the distinction between express consent, implied consent and exemptions.

Express Consent

To satisfy the requirements for express consent under CASL, the sender must state the purpose (or purposes) for which the consent is being sought, include prescribed sender identification in the consent request and all of the following specific information set out in section 4 of the Regulations (SOR/2012-36).  Moreover, the request form for express consent (whether a paper or online or other type of electronic form) must require a positive opt-in not a pre-checked box or opt-out (see, for example, CRTC Compliance and Enforcement Information Bulletin CRTC 2012-549).

Draft consent requests from clients are commonly missing one or more of the above required information (e.g., some of the prescribed contact information or a statement that recipients may unsubscribe at any time).

In other cases, there is no mechanism for positive opt-in consent (e.g., there is no opt-in box, an opt-in box is pre-checked or there is merely a statement in general terms and conditions that recipients consent to receiving electronic messages).

It is important for marketers sending CEMs to ensure that all of the information required under CASL and the Regulations is included in all express consent requests.  If even one element is missing, that will mean that the consent request was defective and all CEMs relying on the consent request will be non-compliant.  In this regard, it is useful to use a checklist for all consent requests to ensure that no express consent request requirements are missed.

Implied Consent

Unlike express consent, which will apply to any recipient provided that the identification and other requirements for express consent under CASL have been met, implied consent is limited to certain situations listed under subsection 10(9) of CASL.

Categories of implied consent include where: (i) there is an “existing business relationship”; (ii) there is an “existing non-business relationship”; (iii) a person has published their electronic address without a statement that they do not want to receive unsolicited CEMs and the message is relevant to their business; and (iv) a recipient has disclosed their electronic address to a sender without indicating that they do not want to receive unsolicited CEMs and the message is relevant to their business.

A sender that wants to rely on any of these categories of implied consent must ensure that they meet all of the specific requirements of the particular type of implied consent.

For example, two of these categories of implied consent (the existing business relationship categories) are time limited (in the case of a sale, to two years from the last purchase, and in the case of an inquiry about a product or service, to six months from the last inquiry).

Another category of implied consent (so-called “conspicuous publication” category) requires not only that a person has conspicuously published their electronic address with no statement that they do not wish to receive electronic messages, but also that any CEM sent to them is relevant to their “business, role, functions or duties in a business or official capacity”.  If any of these requirements is not met, this category of implied consent will not apply.

As with express consent, we commonly see clients who have not ensured that all of the requirements of the relevant category (or categories) of implied consent that they wish to rely on have been met or that their distribution list divides recipients according to the type of consent.

In other cases, clients that have purchased or acquired e-mail lists (e.g., from international list sellers or other sources) are unsure whether the list provider has obtained any express consents or met the requirements of any of the categories of implied consent.

We also see some clients who are under the misunderstanding that the various categories of implied consent are exemptions from CASL altogether.  In this regard, it is important for marketers to keep in mind that even if they can rely on one or more categories of implied consent under CASL, that they still must also include prescribed sender contact information and an unsubscribe mechanism in CEMs (and, if requested, must unsubscribe recipients who request to be unsubscribed within ten business days).

CASL Exemptions

There are a number of exemptions to section 6 of CASL (the unsolicited CEMs section), which, if met, mean that section 6 does not apply at all (i.e., none of the three core requirements of CASL – consent, sender identification and an unsubscribe mechanism – are required).

Some exempt categories of CEMs under section 3 of the Regulations (SOR/2013-221) include: (i) CEMs sent by an employee, representative, consultant or franchisee of an organization to another employee, representative, consultant or franchisee of the organization (and the message concerns the activities of the recipient organization); (ii) CEMs sent by an employee, representative, consultant or franchisee of an organization to an employee, representative, consultant or franchisee of another organization if the two organizations have a relationship and the message concerns the activities of the recipient organization; (iii) CEMs sent in response to a request, inquiry or complaint (or is otherwise solicited by the recipient); and (iv) CEMs sent to satisfy a legal or juridical obligation and other specified legal obligations and rights set out in the Regulations.

As with express and implied consent, senders that wish to rely on a CASL exemption must ensure that they meet all of the specific requirements of the exemption sought to be relied upon.  In this regard, in addition to the specific elements for each exemption, some exemptions (e.g., the “business-to-business” exemption under section 3(a)(ii) of the Regulations) have been further interpreted in decisions by the CRTC and the Federal Court, which means that senders must also understand any additional requirements of an exemption arising from related case law.  This can, therefore, in some cases provide significantly less comfort to electronic marketers than with express consent.

Some of the common CASL exemption errors we see include situations where a client is under the misunderstanding that a category of implied consent is an exemption (and therefore is not fulfilling the identification and unsubscribe requirements that still apply to implied consent), where one or more elements of an exemption have not been met or where a distribution list is not divided by the type (or types) of exemptions being relied upon.

Requesting Consent On Behalf of Third Parties

A final, but important, CASL consent related issue is how to request consent on behalf of third parties for them to send CEMs.  In this regard, our clients commonly either ask how to request consent on behalf of third parties to send CEMs or have draft consent requests that they ask us to review that seek to request such consent.

Under CASL, express consent can be obtained: (i) on behalf of a person requesting consent for itself; (ii) on behalf of identified third parties; or (iii) on behalf of unidentified third parties (i.e., companies or individuals not known at the time the consent request is made).

With respect to collecting express consent on behalf of an identified third party (or parties), which we are frequently asked to provide advice in relation to, all of the general express consent request requirements set out in section 6 of CASL and the Regulations must still be met.

However, in addition, an express consent request for identified third parties must also state the third party’s name (or doing business name if different), which person is seeking consent and the person on whose behalf consent is sought and the mailing address and at least one of the following for the third party: telephone number, e-mail address or web address (or a link to this information).

Some of the common errors we see relating to consent requests for identified third parties include merely listing third party company or affiliate names in a consent request (i.e., without any indication that consent for those third parties is being requested), not including the specific consent request information set out in the Regulations relating to third parties or including any contact information for third parties.

For more information on express and implied consent, CASL exemptions, and requesting consent for third parties under CASL, see: Anti-Spam (CASL)Anti-Spam Compliance Errors and Anti-Spam (CASL) FAQs.

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CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS

Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?

We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL.  These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists.  We also offer a CASL corporate compliance program.  For more information or to order, see: Anti-Spam (CASL) Precedents/Forms.  If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.

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Our experience includes advising clients in Toronto, Canada and the United States on the application of Canadian competition and regulatory laws and we have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.

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