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What is the Difference between Express and Implied Consent under Casl?

Under the Canadian Anti-Spam Legislation (CASL), the primary difference between express and implied consent lies in how the permission is obtained and how long it remains valid.

Express Consent

Express consent is considered the “gold standard” of permission. It is an explicit, documented opt-in where a recipient clearly agrees to receive commercial electronic messages (CEMs). Key features include:

  • Acquisition: It is typically obtained through a clear affirmative action, such as an unchecked checkbox on a web form, a signed paper document, or a recorded verbal agreement.
  • Duration: This consent remains valid indefinitely unless the recipient chooses to withdraw it by unsubscribing.
  • Requirements: The sender must clearly state the organization’s name, the purpose of the consent, and that the recipient can unsubscribe at any time.

Implied Consent

Implied consent is not actively granted by the recipient but is inferred based on an existing relationship. Key features include:

  • Acquisition: It arises from existing business relationships (such as a purchase), non-business relationships (such as a membership), or a direct inquiry.
  • Duration: It is strictly time-limited. Consent derived from a purchase or transaction typically expires after two years. Consent derived from an inquiry lasts only six months.
  • Strategy: To maintain long-term communication, businesses should attempt to convert implied consent into express consent before these windows expire.

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