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Details on CASL Consent
CASL is based on consent. Messages cannot be sent unless there is consent. The two types of consent are express and implied. There are important differences between the two kinds of consent, and it is crucial that businesses and organizations have a clear understanding of what is and is not acceptable.
Express consent, also called explicit consent, can be defined as direct permission for contact. It means that in order for you to be able to contact anyone via electronic messaging, the individual has to have consented to receiving such communication.
There must be a specific reason for the organization to initiate contact and ask for consent, the organization or person sending the message must be clearly identified and additional contact information, including a mailing address, telephone number, email address or website must also be provided. The message must also contain clear information about how to unsubscribe or take back consent whenever the recipient wishes to do so.
In addition, consent forms must not have boxes that opt in to emails pre-checked. They must be set up so that the consumer has to actively express consent. A couple of the ways that express consent can be obtained is by individuals signing up on your website or confirming through a link in an email.
Once express consent has been established, it is vital to keep documentation of it, as a situation may arise in which you have to prove that you had consent. This includes the date and time consent was given, the IP address from which the individual consented, how it was given and other facts. Express consent is not revoked until the recipient specifically opts out.
Implied consent is a little harder to determine than express consent. Typically, it means that a business or organization can email an individual if there is a prior relationship, even if that person has never directly given permission.
Under CASL, that means that there must be an established business or non-business connection and the person receiving the emails must have published or given his or her email address to an organization without any statement that the person does not want to receive electronic messaging, and the messages must be related to the recipient’s business or duties.
In order to prove an existing relationship, the organization and its email recipient must have done business within two years prior to the message being sent. This can include purchasing a product or paying for a service with the organization. Within the two years, it would be best to solicit express consent, rather than trying to keep track of when the implied consent will expire.
If a person makes an email inquiry to a company or group, this also gives implied consent, but only for six months. The organization is permitted to reply, and to try and establish express consent in that time.
Non-business relationships are between organizations and the recipients’ volunteer work or donation for that registered charity or political party. The definition of existing non-business relationship is somewhat ambiguous, so an organization with these types of relationships should try to secure express consent as well.