CASL & Consent: Who can I send emails to?

Written by Alex Kim on Tuesday 25, July 2017
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Alex Kim explains the new Canadian Anti-Spam Legislation, that came into effect July 1, 2017

On July 1st, 2017, the three-year grace period for the Canadian Anti-Spam Legislation came to an end, officially making it the law of the land. It was designed to protect individuals from receiving unsolicited commercial messages via email. The government has determined that email addresses are the property of whoever owns them, and it is their job to protect that property.




At the core of this legislation, is the concept of consent. People should only receive emails from individuals or businesses that they have consented to. CASL has given marketers cause for concern since it was passed back in 2013. How can I run a successful email campaign only to people that have explicitly told me I can?

What I say to you is – DON’T PANIC! While CASL has more rigid regulations protecting individuals, there are ways to work through it and still be successful in your email marketing. So the question remains, who can I send emails to? The answer, to those individuals who have given you either expressed or implied consent.


Expressed Consent

Expressed consent is exactly what is sounds like. Individuals have consciously and explicitly requested to receive emails from your business. With this type of consent, companies have the right to send emails in perpetuity, until a time when that individual unsubscribes.

There are different ways in which express consent can be received, from opting-in online to an in-person paper form. The takeaway is that there must be physical evidence of a consumer requesting contact through email.

In the past, websites have often had check boxes for people to request emails, but the checkbox alone is no longer enough.


Now, companies must also show a disclaimer containing:

  • Their full organization name
  • The type of emails they will be sending
  • A valid mailing address
  • Contact information
  • A clear statement that they can unsubscribe at any time


Implied Consent

While expressed consent is clearly quite rigid, implied consent allows marketers much more flexibility in who they can reach out to.

Implied consent is received when:

  • Someone makes an inquiry or mild expression of interest, you have implied consent for six months (ie. signing up for a contest)
  • Someone makes a meaningful expression of interest, you have implied consent for two years (webinar, free trial, product sample, etc.)
  • Someone makes a purchase, you have two years of implied consent
  • Someone has entered into a contest with you, then you have two years of consent after that contest ends


Implied consent is also valid when an email address has been published for public display.

As a marketer you must be able to:

  • Prove that email is on public display (website, blog, etc.)
  • Prove there is not a ‘non-solicitation message’ near their email address
  • Be certain messages are related to their role

This form of implied consent creates a two-year window. It is recommended that you take screenshots of where you found the email on public display.



There is one final way in which consent can be implied if an individual refers you to their friend or acquaintance. Since that friend or acquaintance has not given you their consent, CASL allows for ONE message to be sent to them as long as the name of the referrer is included in that message.


What does this mean?


At the end of the day, YOU are responsible for being able to prove that you have consent, expressed or implied. The more of a paper trail exists, the better protected you are against CASL. Can you prove that you received consent?

If you think that this legislation is toothless, think again. Porter Airlines and Rogers Communications received fines of $150,000 and $200,000 respectively for various CASL violations, and they are not alone.

Audit your current email marketing practices, and consider WHO you are sending your messages to. Consent. Consent. Consent.