Will Your Express Consent Count?

In a recent series of articles I address the 5 types of consent you might claim under CASL and what requirements must be met in order to claim them. CASL: The 5 Types of Consent . The "gold standard" of consent is without question - Express consent.  Within that series of articles, Express Consent was the first one I covered.

Securing it is 'fall of the log' simple - there are 4 prescribed elements required - yet, for some strange reason, many companies can't get it right!

The 4 elements are:
1. State the legal Company name and mailing address.
2. Describe what you intend to send to subscribers
3. Provide a contact name and 2 ways to reach them
4. State "You can unsubscribe at any time"

Pretty straightforward yes? Well let's have a look...

Here is Golftown's email sign up as of August 15, 2017 - 3 years after the law began being enforced and 7 years after CASL was passed as a law.

Down in the lower left corner there is a field called "Sign-up for E-mails". Kudos to them - the check box is not pre-checked (the recipient must take a positive action), yet the language is not even close.

"Yes, I would like to receive special offers from GolfTown via email".

So Golftown is collecting these email addresses and very likely sending emails under the belief they have collected express consent. But this is not express consent as defined by CASL and CRTC, who are enforcing this law.

Based on CRTC's communications to date, Golftown's version of express consent will not even come close to the measures set. (see the 4 elements mentioned above). The CRTC puts it this way:

"Valid consent given in writing or orally. The Recipient gave you a positive or explicit indication of consent to receive commercial electronic messages. Your request for consent set out clearly and simply, the prescribed information. Express consent is not time-limited unless the recipient withdraws his or her consent. Keep records of how you obtained implied or express consent, since in both cases you have the onus to prove consent."

In this case the positive action could be checking the box OR simply filling out the email address - if the only reason they are giving you their email address is to sign-up for the email list - that's the positive action. But everything else is missing.

And it's so simple.

Take a look at George Brown College - Oh so close.

Yet technically it does not meet the measures. They do make an effort to describe what you are signing up for, so why not add their full legal name and mailing address? There should be no mistake who you are giving consent to. And just to make the express consent valid, adding a contact name and 2 ways to reach them would get the job done. My Dad used to tell me - "If a job is worth doing, it is worth doing it right the first time". Including 2 of the 4 prescribed elements is unacceptable.

Here are a couple of examples of simply offering up the prescribed information:

Mark's Work Warehouse and Canadian Tire have it right - all 4 elements - no big deal!

Clearly someone in management understands the business risks of non-compliance. CASL is the law when marketing to Canadians and it is not optional! (though MANY companies appear to be treating it that way). Thanks Canadian Tire and Mark's for taking it seriously.

It is not difficult and with CRTC looking to enforce this consent based law, I should think well worth the investment of time and energy to get it right.

CASL is not rocket science but it requires you to have a solid understanding of what CASL compliance looks like and for email marketers to clean up our act. For more information on CASL compliance visit www.caslcompliant.ca.


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