Clearing up the Consent Confusion

What is CASL Consent?

CASL defines two types of consent; express and implied. Even within our offices we’ve had many discussions about what each type of consent means and how it will apply once CASL comes into full effect. We’re sure you’ve probably had these same discussions on what consent is and how it applies to your practices, and you’ve likely also heard differing explanations and opinions on how it should apply to you.

We fear what we don’t understand. So, as an addition to our previous post on Ensuring CASL Compliance Using MailChimp, we want to take a moment to help you understand what consent is and how it applies to your email marketing efforts.

Disclaimer: Although we have been in close contact with lawyers who are very familiar with the upcoming laws and their implications, we are not lawyers and nothing in this post should be considered as legal advice. For advice on legislation compliance, please consult with a lawyer.

Express Consent Vs. Implied Consent
From CTRC:

Express Consent

The most desirable type of consent is express consent. These are the people who have put up their hands and said, “Yes! I would like to receive promotional emails from you!” Not only are you completely compliant with CASL when you send these people messages, they are also more likely to take action on the messages you send than recipients with only implied consent. These recipients have explicitly stated that they want updates and promotions from you, and you can send them updates forever (until they ask you to stop sending them).

Existing Express Consent is Valid

Luckily, if you obtained express consent before July 1st, 2014, your existing express consent is still valid. You need to be able to prove that you have this consent if it’s ever requested, so make sure you keep good records of who you obtained consent from, how you obtained it, and when. Ideally this is all managed in one place, and it makes sense for that one place to be MailChimp since that will be where you send your messages from, and it’s the place where your subscribers will unsubscribe if they choose to. You can also easily export your MailChimp lists at any time and those exports contain all of the information you need to show express consent, such as the date they confirmed their subscription (using double opt-in) and the IP address where they confirmed from.

Express consent is really the easier of the two consent types to understand. Implied consent can be a little more confusing.

Implied Consent

Implied consent allows you only a limited amount of time to send out messages. Like express consent, implied consent is only valid until a subscriber specifically states they no longer want to receive communications from you (unsubscribes, in the case of a newsletter managed through MailChimp).

Consent can be considered implied in a few different scenarios:

  1. If you have a current business relationship with the recipient and the message you send is relevant to their business, or their role or function within the business.
  2. The recipient has specifically given you their electronic address and the message you send is relevant to their business, or their role or function within the business.
  3. The recipient has conspicuously published their electronic address and the message you send is relevant to their business, or their role or function within the business.

NOTE: In the second and third scenarios above, you only have consent if these recipients haven't stated that they don't want to receive commercial messages at that address.

For newsletter purposes, ignore the last scenario. At first glance, it might seem that anyone who makes their email address public online is fair game to add to your newsletter, but this is definitely not the case. This allowance is likely to make it possible for people to send one-off emails with introductions, business proposals, etc. A great example would be where someone shares their email address on their LinkedIn profile and states that they are open to new business opportunities. This would allow recruiters to find a person’s email on their LinkedIn profile and send them a message about a potential new position without contravening CASL.

MailChimp also has it’s own terms of use that are in some cases stricter than CASL. MailChimp only wants opted-in subscribers in their system, so that last scenario would be contradictory to MailChimp’s terms of use.

Implied Consent Expiration

Each type of implied consent has a slightly different expiration and you’ll need to be careful how you track and manage your records.

  • If you have an existing business relationship with a recipient, and for two years after the business relationship ends, you have implied consent.
  • If you received a request or inquiry from a recipient, you have 6 months of implied consent.

The intent behind implied consent in the second scenario is probably for you to be able to respond with relevant information related to their request or inquiry. Don’t abuse this, but use it as an opportunity to convert that recipient into a subscriber.

Transition Period for Implied Consent until 2017 – in some cases

There’s a section of the new law ( 66(b), if you're curious) that gives us a bit of breathing room until July 1st, 2017. If any of the implied consent scenarios apply to a recipient before July 1st, 2014, or your previous business relationship includes the sending of commercial messages before July 1st, 2014 (such as people you have sent a message to in the past and haven’t unsubscribed), then you have implied consent until July 1st, 2017. The expiration of implied consent doesn't apply until that date, regardless of how long the legislation states.

But wait! You can't just assume implied consent all the way through until 2017. You must have had this implied consent with a subscriber before July 1st, 2014 in order to safely use it until 2017. CRTC posted this clarification rather close to the July 1st deadline, but in it they made it clear that after July 1st, 2014, you need to start being compliant with the new legislation.

Some examples to really paint the picture of how this might work for your business during the transition period:

  • If you had an existing business relationship with a recipient before July 1st, 2014, then you can assume implied consent until 2017.
  • If you sent a MailChimp campaign to a list of recipients before July 1st, 2014, then you can assume implied consent until 2017.
  • If someone makes an inquiry to you on July 2nd, 2014, you only have implied consent for 6 months, not until 2017!

Use the Transition Period Wisely and Convert!

Make sure you use this time wisely. Use it to convert as many of your subscribers as possible to express consent. Dream up some really creative strategies to persuade your customers to voluntarily sign up for your list and obtain full express consent. Make sure you are clear on the benefits of subscribing to your list and provide them with quality messages that deliver those benefits. You want them to feel like part of an exclusive membership that they can't help but want to be a part of.

Some benefits you might want to highlight:

  • quality informative content related to the products and services you offer, such as important news in your industry that may affect your subscribers, product care tips, product updates, new offerings to solve your subscribers’ needs, etc.
  • notice of upcoming sales and promotions
  • coupon codes for products and services
  • subscriber prize draws
  • subscriber contests

If you’ve been practicing converting people from implied consent to express consent for the three years leading up to 2017, you’ll have a wealth of experience and tactics to use to attract people to voluntarily sign up for your newsletters.

We hope this article has cleared up the consent confusion and you have no more reason to fear what consent is or how to use it properly to turn your newsletter into a powerful marketing tool, all while staying compliant with CASL. If you would like help with your email marketing, we're always here for you, just get in touch!