In case you aren’t aware, July 1, 2017 is the cutoff for the “transitional period” of the Canadian anti-spam law (CASL). What this means for you as either a Canada-based email sender – or in some situations even a non-Canada-based email sender sending email to Canada-based addresses – is that it is the end of the grace period during you may be excused for any email address on your mailing lists not having provided express consent, or the implied consent under the very limited exceptions to express consent.
What exactly do we mean by all of the above, and what does this mean for you?
Section 66 of CASL, provides:
66. A personâ€™s consent to receiving commercial electronic messages from another person is implied until the person gives notification that they no longer consent to receiving such messages from that other person or until three years after the day on which section 6 comes into force (emphasis ours), whichever is earlier, if, when that section comes into force…
Section 66 came into force on July 1, 2014; hence July 1, 2017, is the “three years after the day”.
What this all means in plain English is that between July 1, 2014 and July 1 2017, if you had email addresses on your mailing list which qualified for having given implied consent prior to July 1, 2014, you didn’t have to worry about the fact that you had implied, but not express, consent for those addresses during that three year period. (Because generally implied consent is only good for at most two years, and often for only six months – see below for more about that.)
Starting tomorrow (July 1, 2017) all email addresses on your mailing list must have given express consent, other than the limited implied consent exceptions.
What are those limited implied consent exceptions? We’re glad you asked.
Implied Consent Under the Canadian Anti-Spam Law (CASL)
Consent to receive commercial email under CASL may be implied if, and only if:
1. There is an existing business relationship based upon a purchase, and that purchase occurred within the last 2 years of the date of the mailing; or
2. There is an existing business relationship based upon an inquiry and that inquiry occurred within the last six months of the date of the mailing.
There is a third category, called “conspicuous publication” but it is so dicey as to not be worth the risk. Basically if the email address was published publicly and the addressee or their agent published it where you accessed it and there is no language where it is published saying that they don’t want unsolicited email and the email you send to it is directly relevant to their position and business, then you may be able to get away with the conspicuous implied consent exception. However as the Blackstone decision under CASL makes clear, relying on conspicuous publication is a risky business, and the burden is on the email sender to prove each point of the defense. So, really, just don’t do it.
The bottom line is that to be safe (not to mention to help ensure that your email goes to the inbox) you should really have express consent (i.e. the holder of the email address has clearly agreed to receive your commercial email – ideally in writing, as on the phone or in person is hard to prove). As a happy side benefit, express consent has no time limitations under CASL, unlike implied consent.
As always, if you aren’t sure about something, and need some expert guidance, drop us a line at firstname.lastname@example.org