What is the difference between explicit and implied consent?

Explicit consent is when a user actively and unambiguously agrees to receive marketing communications, often through an unchecked box they must tick. Implied consent is inferred from an existing relationship, such as a customer's recent purchase, but typically comes with time limits and less flexibility for marketing.

Can I send marketing emails to paying customers without explicit consent?

For transactional emails like receipts or service updates, explicit marketing consent is generally not required, even for paying customers. However, for marketing emails, while some regions (like Canada under CASL) may allow implied consent for a limited period, it is always best practice to obtain explicit consent to ensure compliance and build stronger relationships.

Should I use a single consent strategy for all regions (US, EU, Canada)?

If you operate across regions like the US, EU, and Canada, it is advisable to adopt a single consent strategy that adheres to the strictest regulations (e.g., GDPR or CASL). This 'highest common denominator' approach ensures broad compliance, even if it means being more conservative than legally required in some regions.

How can I gain marketing consent from users of a desktop application?

For desktop applications, you can prompt users to opt-in for marketing emails through in-app notifications, onboarding flows, or a dedicated preference center within the application. Clearly explain the value they will receive from these emails to encourage opt-in.

Is it okay to send a welcome email and ask for consent within it?

In regions with strict opt-in laws like Canada (CASL) and the EU (GDPR), sending any unsolicited email, even a welcome email asking for consent, can be problematic. It's safer to ensure consent is obtained before sending any marketing communication. For the US (CAN-SPAM), it is generally permissible as long as it includes an unsubscribe option.

How should I manage marketing consent for free and paid subscription users across different regions like the US, EU, and Canada? - Compliance - Email deliverability - Knowledge base

Navigating email marketing consent can feel like a minefield, especially when dealing with free versus paid subscription users and the diverse legal landscapes of regions like the US, EU, and Canada. Ensuring compliance is not just about avoiding legal penalties, it's fundamental to maintaining a strong sender reputation and ensuring your emails actually reach the inbox, rather than being caught by a blocklist or (or blacklist) filter.

The core challenge lies in understanding the nuances of explicit versus implied consent and how different regulations interpret these concepts. What's permissible in one region can lead to significant issues, including being added to a blocklist (or blacklist), in another. This guide aims to demystify these complexities, helping you build a robust and compliant consent management strategy that works across borders and user tiers.

The distinction between explicit and implied consent is paramount in global email marketing. Explicit consent means an individual has clearly and unambiguously agreed to receive specific communications, often through a clear affirmative action like checking an unchecked box. Implied consent, on the other hand, is inferred from an existing relationship or action, such as a past purchase.

In the United States, the CAN-SPAM Act generally operates on an opt-out model, meaning you can send commercial emails as long as you provide a clear and conspicuous way to unsubscribe. While not requiring explicit opt-in, it does mandate accurate header information and a valid physical postal address. For more details on these requirements, you can refer to the CAN-SPAM Act compliance guide.

Conversely, the European Union's General Data Protection Regulation (GDPR) enforces a much stricter, explicit opt-in standard. Consent must be freely given, specific, informed, and unambiguous. Pre-checked boxes are not allowed, and users must actively consent to each specific type of marketing communication they wish to receive. This often necessitates double opt-in for email marketing in many cases as a best practice, even if not explicitly mandated by law.

Canada's Anti-Spam Legislation (CASL) is another strict opt-in regime. While it generally requires express consent, it does recognize implied consent in certain situations, such as an existing business relationship (e.g., a customer who purchased a product within the last two years). Even with implied consent, clear identification and unsubscribe mechanisms are required. The CRTC compliance guide provides helpful insights into these rules.

US (CAN-SPAM)

Consent Model: Opt-out model, generally less strict.
Requirements: Clear sender identification, valid physical address, and easy unsubscribe mechanism.
Paid Users: Implied consent often assumed from existing business relationship, but still must offer opt-out.
Free Users: Can send marketing emails until they opt-out. Best practice still leans towards explicit consent.

EU (GDPR) & Canada (CASL)

Consent Model: Strict opt-in required for marketing communications.
Requirements: Freely given, specific, informed, and unambiguous consent via a clear affirmative action (e.g., no pre-checked boxes).
Paid Users: Express consent needed for marketing. CASL allows implied consent for 2 years post-purchase, but seeking express consent is safer.
Free Users: Explicit opt-in is mandatory for marketing messages. You cannot send marketing emails without direct consent.

When managing consent, it's crucial to distinguish between transactional and marketing emails. Transactional emails, such as order confirmations, shipping updates, or password resets, are generally permitted regardless of marketing consent because they relate directly to a user's purchase or interaction with your service. These are considered essential for the functioning of the service and are typically outside the scope of marketing consent rules.

For paid subscribers, while a business relationship provides a basis for communication in some regions, it doesn't automatically grant permission for marketing. For instance, under CASL, there's a two-year window of implied consent for existing customers. However, relying solely on implied consent is riskier and limits your marketing flexibility in the long run. It's always a stronger practice to obtain clear, explicit consent for marketing communications, even from your most loyal paying customers.

Free users, on the other hand, require explicit opt-in for any marketing emails, especially if you're targeting EU or Canadian audiences. Sending marketing content to free users based on implied consent alone is a common pitfall that can lead to spam complaints, high unsubscribe rates, and ultimately, damage to your sender reputation, making it more likely for your emails to land on a blocklist (or blacklist). Many emails go to spam for this very reason.

Best practices for gaining consent

Clear Opt-in: During signup, use an unchecked box explicitly asking for marketing consent, not pre-checked options. This is especially important for compliance.
Value Proposition: Clearly state what kind of emails users will receive (e.g., product updates, promotions) and the benefits of subscribing. This improves consent for welcome flows.
Preference Centers: Allow users to manage their communication preferences at any time, distinguishing between transactional and marketing emails.
In-app Prompts: For desktop applications, gently prompt users within the application to opt-in for marketing emails, perhaps with a valuable offer.
Retrospective Opt-in: If you have existing users without explicit consent, use transactional emails or in-app notifications to ask them to opt-in to marketing communications.

Given the varying regulations, adopting a highest common denominator approach is often the most practical. If you lack the resources to segment your audience by region and apply country-specific rules, align your practices with the strictest regulations, such as GDPR or CASL. This ensures you're compliant across the board and mitigates the risk of legal issues or email blacklist placements, no matter where your users are located.

Robust record-keeping is non-negotiable. You must be able to demonstrate when, how, and for what purpose each user provided consent. A Consent Management Platform (CMP) can help, but even a simple internal system can suffice if meticulously maintained. This includes logging the timestamp, the method of consent (e.g., web form, in-app), the specific terms agreed to, and the user's IP address. This documentation is critical for compliance and in case of any disputes.

Example consent record entryjson

{
  "user_id": "USER123",
  "email": "user@example.com",
  "consent_type": "explicit_marketing",
  "timestamp": "2023-10-26T14:30:00Z",
  "region": "EU",
  "source": "signup_form",
  "marketing_preferences": [
    "product_updates",
    "promotional_offers"
  ]
}

Addressing internal attitudes that prioritize sending volume over compliance is vital. Explain that simply being technically within the rules is a low bar that can still lead to deliverability issues, particularly with major inbox providers tightening their requirements. Focusing on explicit consent not only ensures legal compliance but also leads to higher engagement rates and better email list hygiene.

A crucial aspect of managing consent is handling unsubscribe requests. Regulations like CAN-SPAM and CASL specify timeframes for processing these requests. Ensure your unsubscribe process is straightforward, ideally a one-click process where possible, to prevent users from marking your emails as spam, which can negatively impact your sender reputation.

User type	Email type	US (CAN-SPAM)	EU (GDPR)	Canada (CASL)
Paid subscriber	Transactional	Permitted	Permitted	Permitted
Paid subscriber	Marketing	Opt-out model	Explicit consent	Implied consent (2-year limit, express preferred)
Free user	Transactional	Permitted	Permitted	Permitted
Free user	Marketing	Opt-out model	Explicit consent	Explicit consent

Views from the trenches

Best practices

Implement a clear, affirmative opt-in process for all marketing communications, especially for free users, aligning with the strictest regulations.

Maintain comprehensive consent records, including timestamps, consent method, and specific terms agreed upon, for audit purposes.

Educate your team on the difference between transactional and marketing emails and the legal implications of each.

Prioritize explicit consent for all users, including paid subscribers, to build trust and ensure long-term deliverability and engagement.

Common pitfalls

Relying solely on implied consent for marketing emails, particularly for free users or in EU/Canada, can lead to compliance issues and spam complaints.

Not having a centralized system to track and manage user consent across different regions and subscription tiers.

Failing to process unsubscribe requests promptly, which can result in users marking emails as spam, negatively impacting your sender reputation.

Assuming that paid users automatically consent to all marketing communications; always seek explicit permission for marketing messages.

Expert tips

If your resources are limited, adopt the most stringent consent rules across all regions (e.g., GDPR or CASL) as your baseline to ensure broad compliance.

Regularly audit your consent collection methods and data storage practices to ensure they remain compliant with evolving privacy laws.

Leverage in-app prompts or non-email channels to encourage free users to opt-in for marketing communications where email consent isn't initially present.

Focus on providing value in your marketing emails to encourage engagement and naturally foster a desire for recipients to remain subscribed.

Expert view

Expert from Email Geeks says that for a paid newsletter, the act of paying for the email service can be considered the ultimate form of consent.

2021-12-21 - Email Geeks

Expert view

Expert from Email Geeks notes that sending an initial welcome email asking for consent may be problematic under CASL but generally acceptable in the US.

2021-12-21 - Email Geeks

Maintaining healthy email lists

Effectively managing marketing consent across different user tiers and international borders is a complex but critical task for email deliverability. By understanding the specific requirements of regions like the US, EU, and Canada, and by prioritizing explicit, clear consent for marketing communications, you can build a more engaged and compliant subscriber base. This proactive approach minimizes legal risks and enhances your sender reputation, ensuring your messages consistently reach your audience's inbox.

Remember, compliance is a continuous process, not a one-time setup. Regular review of your consent practices and adaptation to evolving regulations will safeguard your email program and foster long-term customer trust.