So far in our series about Canada’s Anti-Spam Legislation (CASL) we have covered the basics and commercial electronic messages. In this post we will cover the different types of consent and the burden of proof.
Consent = Permission
There are two different types of consent that apply to CASL, express and implied. Express consent means an individual must take affirmative action to “opt-in” to your list willingly. Implied consent is when a relationship exists, but the recipient is added to your list without any affirmative action.
With both types of consent there a is “burden of proof” that is required. This means that it is your responsibility to track, record, and document the information necessary to prove that you have consent to be contacting that person. Best practices include ensuring that all records of your compliance procedures and policies are maintained, and that proof of consent is documented and tracked. This information may support a due diligence defense at a later point in time if your firm is ever called into question.
So let’s see this in action….
You collect someone’s business card and after meeting them send an email to confirm that you met them and they have requested more information or to be added to a list. This allows you to have the necessary information needed for the burden of proof.
Someone fills out a form on your website with the intent of being placed on your list. A confirmation email would then be sent which requires a recipient to click a link to confirm they wish to be placed on the list. When they click the link, the date/time and IP stamp should be recorded.
A person gives you their email address over the phone with the intent of being placed on your list. The same process of sending a confirmation email applies, but express consent could be proven if you recorded the conversation for each recipient.
If someone expresses interest in your business as part of the sales process or enters their email address on your website to download educational material, they are to be considered “prospects” and implied consent is given to send commercial electronic messages for a period of 6 months only.
If a recipient is added automatically or is required to un-check a box to opt-out during a process, this method is considered implied and not express consent under CASL. As a best practice this should be avoided anyways as it will typically generate a large volume of emails flagged as spam which negatively affects your reputation as a sender. In order for it to be express consent, a recipient must go through an opt-in mechanism, as opposed to opt-out. The end-user must take a positive action to indicate their consent.
Check back as our next post will cover the fine print of CASL and processes that can be used during the three-year transition period in case you are not going to meet the July 1st deadline!