Implied consent and express consent: what's the difference?
Implied consent and express consent are two different forms of consent you can collect in order to be able to communicate electronically with someone.
Express consent refers to a contact who has given you explicit permission to contact them through electronic messages. Contacts can opt-in through an online or physical signup form, over the phone, at the point of sale, or by responding to a coupon offer or contest.
Canada’s Anti-Spam Legislation (CASL) states you are not allowed to pre-check a consent box on a signup form. This is to ensure that consent is expressly granted by the customer and not assumed by the business. For example, if you are creating an online signup form, you cannot default the checkbox to be pre-checked on an item such as "I agree to receive emails from Company XYZ." The customer must decide to check the box on their own.
Implied consent is less direct. It refers to a contact for whom it is reasonable to believe that you have permission to send messages. Implied consent is based on you having a prior relationship with the contact. Your contacts may qualify for implied consent if they have:
- Bought or leased a product or service from your business in the past two years
- Entered into a written or electronic contract with your business in the past two years
- Enquired or applied to your business in the past six months
- Done investment or gaming with your business in the past two years
- Made a donation to your registered charity or political organization in the past two years
- Volunteered with your registered charity or political organization in the past two years
These are a few examples of situations where a contact would qualify for implied consent.
Even if you have implied consent, you will eventually have to obtain express consent so there is no doubt that your contacts want to receive electronic messages from you. It is also a best practice to regularly ask your contacts to re-opt in to ensure their consent is current and active.
For contacts who you first made contact with before July 1, 2014: Your implied consent will expire on July 1, 2017.
For contacts who you first made contact with after July 1, 2014: Your implied consent will expire two years after you initially made contact.
Check out our CASL page for more information!