How to determine the start of the six-month contact window under CASL?

Key findings

• Consent types: CASL distinguishes between implied consent and express consent. Implied consent often has a time limit, such as six months or two years, while express consent, once obtained correctly, does not expire unless withdrawn.
• Implied consent window: For inquiries, such as someone requesting a quote or information about services, the implied consent period is generally six months. For business relationships, like a purchase, it can extend to two years.
• Starting point for inquiries: The six-month window for implied consent, especially for inquiries, is widely considered to begin from the date of the initial request or the last relevant interaction directly related to that inquiry.
• Legal interpretation: While practical approaches might extend communication based on ongoing engagement, strict legal interpretations suggest counting the window from the initial contact or last relevant touchpoint to ensure compliance.

Key considerations

• Review consent processes: Carefully examine your lead forms and data collection methods to determine whether you are obtaining implied or express consent. Proper disclosure on forms can elevate the level of consent, offering more flexibility.
• Last touchpoint vs. first contact: For implied consent based on an inquiry, it is generally safest to consider the window starting from the initial date the prospect contacted you, unless there is clear, ongoing communication directly related to that initial inquiry. Consider how CASL applies to emails sent from outside Canada.
• Engagement strategy: If a lead engages with your content or replies to communications, it may suggest continued interest, but relying solely on this for consent beyond the statutory window is risky. Focus on converting implied consent to express consent where possible.
• Data management: Implement robust systems to track consent types and their expiry dates. This helps in timely removal of contacts from commercial mailing lists if consent expires, preventing potential deliverability issues, including your domain being placed on a blocklist or blacklist. Learn when to remove unengaged subscribers. For further legal insights, refer to Deloitte's CASL FAQ.

Key opinions

• Engagement over strict timelines: Some marketers prioritize ongoing engagement, continuing to send emails as long as leads interact with content, even if they don't convert within the strict six-month period.
• Consent variations: Marketers highlight that the type of consent obtained (e.g., implied vs. express) significantly impacts the allowable contact duration. A request for a quote typically falls under a six-month implied consent.
• Lead nurturing considerations: The timing of email triggers, such as when a lead is marked as 'lost', can affect when communications are sent. Marketers need to align these triggers with consent windows.
• Form disclosure importance: The information and disclosures provided on lead capture forms are critical for determining the level of consent and the applicable contact window. Clear opt-in language is preferred.

Key considerations

• Define engagement: While engagement is valuable, marketers should have clear criteria for what constitutes engagement that justifies continued communication within the implied consent period. Conversely, learn how to define unengaged subscribers.
• Convert consent: Actively work to convert implied consent into express consent during the initial contact window. This can be done through clear opt-in checkboxes or preferences centers in subsequent communications.
• Compliance by design: Integrate CASL compliance directly into marketing automation workflows to ensure emails are only sent to contacts with valid, unexpired consent. For forms, consider best practices for CASL compliant forms.
• Transactional vs. promotional: Be mindful of the distinction between commercial electronic messages (CEMs) and transactional messages under CASL. Transactional messages may not require consent if they relate directly to a service or transaction, however, marketing messages always do. Learn how account update emails should be classified.

Key opinions

• Consent documentation: It is critical to document how consent was obtained. The specific mechanism of registration dictates whether you have a 2-year implied consent, express consent, or the 6-month implied consent.
• Date of request: For implied consent relating to information requests or quotes, experts generally recommend that the six-month window begins from the date of the prospect's initial request.
• Express consent requirements: To achieve express consent under CASL, specific elements must be provided, such as a postal address, clear contact information, and a disclaimer about unsubscribe options.
• Avoid mislabeling consent: Experts caution against using terms like 'we opt-in a lead' if explicit consent was not obtained. Adding someone to a list without clear, explicit consent is not a true opt-in under CASL.

Key considerations

• Legal vs. practical: While marketers might consider engagement, experts advise prioritizing the strict legal interpretation of CASL consent windows to minimize risk of non-compliance and maintain good sender reputation. This can also help you avoid being placed on a blocklist or blacklist.
• Form content: The language and information presented on your lead capture forms directly influence the type and duration of consent. Ensuring proper disclosures is paramount for claiming higher levels of consent. Learn about email authentication basics for overall deliverability.
• Ongoing communication relevance: If there is truly ongoing, relevant communication that extends the business relationship, it might justify extending the contact period, but this must be carefully assessed against CASL's definitions. Failing to do so can lead to emails going to spam.
• Safest practice: When in doubt, it is safest to count the six-month implied consent window from the date of the prospect's original request or initial contact. For additional expert perspectives on email compliance and best practices, consider resources like Word to the Wise.

Key findings

• Definition of implied consent: Implied consent can arise from an existing business relationship (e.g., a purchase, contract) or an existing non-business relationship (e.g., membership, volunteer work). For inquiries, it is specifically tied to the initial contact.
• Duration of implied consent: For an inquiry or request for information, the implied consent lasts for six months from the date of the request. For transactions, it's typically two years.
• Start date for inquiries: Documentation confirms the six-month period for information requests begins from the moment the request is made. This does not generally extend with subsequent non-consensual communications.
• Express consent requirements: To obtain express consent, businesses must clearly state the purpose of the consent, identify the sender, and provide a valid unsubscribe mechanism. This grants indefinite consent until revoked.

Key considerations

• Strict adherence: CASL's rules are stringent. Documentation stresses that businesses must comply with the specified consent types and durations to avoid penalties. Staying compliant is vital to avoid email blacklists and blocklists.
• Tracking consent expiry: Businesses should implement automated systems to track the expiry of implied consent periods and cease sending commercial electronic messages once the window closes, unless express consent is obtained. This helps ensure email deliverability.
• Clear communication: Ensure that your consent forms and privacy policies clearly outline how user data will be used for commercial communications and what type of consent is being collected. For instance, Dialog Insight provides guidance on configuring implied consent.
• Opt-out provisions: Regardless of consent type, every commercial electronic message must include a clear and functional unsubscribe mechanism, which is a fundamental requirement under CASL.