Anti-spam legislation: What’s the difference between express consent and implied consent?

Bill C-28 regulates all commercial electronic messages, whether they are sent via email, SMS or a social media platform. Legally, electronic messages are considered to be of a commercial nature if they can be reasonably understood to be promoting a product, service or business opportunity, whether for profit or not. For example: an offer related to a sale, purchase, rental of a product, service, property, potential business partnership or investment, etc.

Commercial messages can presently only be sent to individuals who have given their express or implied consent. Without this consent, you’ll be breaking the law, and the penalties can be steep.

Many people are under the impression that promotional emails are no longer permitted. But that’s not the case at all. Email marketing is still possible, and it remains the most profitable and efficient method of promoting a product or service. The legislation simply ensures best practices are followed and penalizes the people who clog up inboxes.

What’s the difference between express and implied consent?

When an individual gives their consent to receive communications from you (e.g. signs up for your newsletter on your website), that’s express consent.

Even if an individual does not expressly consent to receive communications, if you can show that you have a business relationship with them, you are considered to have their implied consent. Under the law, the following cases constitute implied consent:

Cyberimpact web extract by Stéphan Lestage