Canada’s Anti-Spam Law – implied consent

The hallmark feature of Canada’s Anti-Spam Law (“CASL”) is that it is an opt-in regime. Sending commercial electronic messages (“CEM”s) is prohibited unless the recipient has consented to receiving the message or an exception applies.

As discussed in a previous blog in this series, consent to receive a commercial electronic message can be given expressly or impliedly. Because the definition of “commercial electronic message” under CASL casts a wide net, implied consent ensures that the law does not capture typical day-to-day electronic messages.

Under CASL, implied consent to receive a CEM can exist in a number of situations:

1) Existing business relationship

If the person or business that sends the CEM has an existing business or non-business relationship with its recipient, the recipient is deemed to have provided implied consent to receive the message.

An “existing business relationship” means a business relationship between the sender of the CEM and its recipient that arises from:

• the purchase of a product, good or service within two years prior to the CEM being sent;
• the acceptance of the recipient of a business, investment, or gaming opportunity offered by the sender within two years prior to the CEM being sent;
• the bartering of a product, good or service between the recipient and sender in the two year period prior to the CEM being sent;
• a written contract between the recipient and sender that is still in effect, or expired within the two year period prior to the CEM being sent;
• an inquiry or application from the recipient to the sender regarding the purchase or lease of a product, good, or service, or a business, investment or gaming opportunity, within the 6-month period prior to the CEM being sent.

Thus, a business may send CEMs to its existing clients or customers, or people who have reached out and made an inquiry of the business because those people are deemed to have consented to receiving the CEM. However, it may be a best practice to convert those implied consents into express consents.

There is a transitional period for the first three years after CASL comes into force (i.e., July 1 2014 to July 1 2017) during which the limitation periods identified above do not apply. That is, implied consent to receive a CEM exists for an existing business relationship for the first three years, regardless of when that relationship arose.

2) Existing non-business relationship

A person or business can send a CEM to someone with whom they have an existing non-business relationship. Such a person is deemed to have consented to receive the CEM.

A “non-business relationship” is a relationship between the sender of the CEM and its recipient that arises from:

• A donation or gift made by the recipient to the sender, if the sender is a registered charity, a political party or organization, or a candidate for publicly elected office;
• Volunteer work performed by the recipient for the sender, if the sender is a registered charity, a political party or organization, or a candidate for publicly elected office;
• Membership by the recipient in the sender, if the sender is a club, association, or voluntary organization.[1]

The three-year transitional period discussed above also applies to existing non-business relationships.

3) Conspicuous publication of the receiver’s electronic address

A person or business can send a CEM to someone who has “conspicuously published” their electronic address and has not included a statement with that publication that the person does not wish to receive unsolicited messages. The CEM must be relevant to the person’s business or role in a business.

For example, if a business publishes its e-mail address on its website, it is likely permissible to send that business a CEM regarding their business.

4) Disclosure of receiver’s electronic address

If the recipient of the CEM has previously disclosed their electronic address to the sender, and has not indicated that the person does not wish to receive unsolicited electronic messages, then that person is deemed to have impliedly consented to receiving commercial electronic messages from the sender that are relevant to the person’s business or role in a business.[2]

For example, a person may send a CEM to someone who has provided their business card to that person, provided the CEM is relevant to the recipient’s business.

In my next post on CASL, I will discuss the exceptions to the consent regime set out in CASL.

[1] See complete definition of “existing non-business relationship” at s 10(13) of CASL.

[2] CASL at s 10(9)(c).