After July 1, 2014, you must have the consent—either express or implied—of the recipient before you send commercial electronic message.
Keep records of how you obtained implied or express consent. The onus is on the sender to prove consent in all cases.
Implied consent exists when there has been no indication from the recipient that commercial electronic messages are unwelcome, and one of the following conditions is met:
- the sender and the recipient have an existing business relationship
- the sender and the recipient have an existing non-business relationship
- the recipient has conspicuously published the electronic address to which the CEM is sent (e.g., on a public website), and the CEM is related to the recipient’s business or official capacity
- the recipient has provided to the sender the electronic address to which the message is sent (e.g., through the exchange of business cards), and the CEM is related to the recipient’s business or official capacity.
Implied consent is time-limited—It is typically a period of 2 years after the event that starts the relationship (e.g., purchase of a good or service). For subscriptions or memberships, the period starts on the day the relationship ends.
Where there is an existing business or non-business relationship that includes the communication of CEMs, consent to send commercial electronic messages (CEMs) is implied for a period of 36 months beginning July 1, 2014.
This means that an organization can continue sending CEMs to current and past customers, donors or members during the transition period. Content requirements must still be met, and if recipients choose to unsubscribe during that period, the organization can no longer send them CEMs.
To rely on this transition period, you must already be engaged in a relationship that includes the sending of CEMs between the sender and recipient as of July 1, 2014.
Express consent can be obtained either in writing or verbally. In either case, the person who is sending the message must be able to demonstrate that consent to send the message has been obtained.
Requests for consent must be clear, and not contained within general terms and conditions.
Requests must include:
- the purpose for requesting the consent (e.g., to send newsletters, updates, promotions, special offers)
- the name, business name and full contact information of the person seeking consent
- the person or business on whose behalf consent is sought
- a statement that the recipient may withdraw consent.
Consent must be obtained through an opt-in mechanism: an individual must take a positive action (e.g., checking off a box or typing in an email address) to indicate consent. Pre-checked boxes are not permitted under the legislation.
Email requests for consent to receive CEMs are themselves CEMs, so are not permitted under the legislation after July 1, 2014.
Exceptions to consent requirement:
The following types of messages are exceptions to the consent requirement. They are still subject to the identification and unsubscribe requirements described below:
- Pending transaction – Messages that solely facilitate, complete or confirm a commercial transaction previously agreed to by the recipient
- Previous transaction – Messages that solely provide warranty, recall, safety or security information for a product or service used or purchased by the recipient
- Factual notice – Messages that solely provide factual information about ongoing use of a product or service under a subscription, membership or account purchased by the recipient (e.g., e-mails confirming course enrolment, class cancellations).