Information Required in CEMs
Many of the messages sent by York University are not subject to CASL. However, all CEMs that are subject to CASL must contain the following information:
- the name of the York University unit sending the message;
- the mailing address, and a telephone number, email address or web address, for the York University unit seeking consent (or a link to a website containing this information); and
- information about how to unsubscribe from future Commercial Electronic Messages from York University (see Unsubscribe Mechanisms).
If it is not practicable to include all of the above information in the CEM, then it must contain a clear and prominent link to a webpage that contains the information.
See Model Language (PDF) for samples of compliant CEMs.
Consent Requirements
Secure Recipients’ Consent to Send Them CEMs
As a rule, before sending a CEM, you must have the recipient’s implied or express consent. However, consent is not required for a CEM that meets any of the following requirements:
- provides a quote or estimate that was previously requested by the recipient;
- facilitates, completes or confirms a commercial transaction that the recipient previously agreed to enter into;
- provides warranty information, product recall information or safety or security information about a product, goods or a service that the recipient has used or has purchased;
- provides factual information related to the recipient’s subscription, membership, account, loan or similar relationship with the sender;
- provides information directly related to an employment relationship or related benefit plan in which the person to whom the message is sent is currently involved, is currently participating or is currently enrolled; or
- delivers a product, good or a service, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction they previously entered into.
Implied Consent
Implied consent may arise in three situations:
1. Where there is an existing business relationship.
Such relationships arise from:
- the purchase or lease of a product, goods, a service, land or an interest or right in land, within the last two years, by the message recipient from York University;
- the acceptance by the message recipient, within the last two years, of a business, investment or gaming opportunity offered by York University;
- the bartering of anything mentioned in paragraph (a) between the message recipient and York University within the last two years;
- a written contract entered into between the message recipient and York University in respect of a matter not referred to in any of paragraphs (a) to (c), if the contract is currently in existence or expired within the last two years; or
- an inquiry or application, within the last six months, made by the person to whom the message is sent to any of those other persons, in respect of anything mentioned in any of paragraphs (b) to (d).
2. Where there is an existing non-business relationship.
York has non-business relationships with alumni, donors and volunteers.
3. Where the recipient has given you or has conspicuously published his or her business contact information.
This only applies where:
- the recipient has not indicated a wish not to receive unsolicited CEMs; and
- your message is relevant to the recipient’s business, role, functions or duties in a business or official capacity.
Implied consent normally lasts for two years. For example, York University has a non-business relationship with its donors, which gives us their implied consent to send them CEMs for two years after their last donation. If you already have a person’s implied consent, you should send them a message asking for express consent before the two-year period expires.
Express Consent
Express consent is consent that has been provided orally or in writing. Once you have secured recipients’ express consent, then you may continue to send them CEMs indefinitely unless they “unsubscribe” from further messages.
Obtaining Express Consent
Oral consent should be avoided unless you have a way to verify the consent, such as an unedited audio recording. It is preferable to obtain express consent in writing, as this makes it easier to verify that the consent was provided. You may request persons to provide their written consent in various ways, e.g. by signing a document, sending you an email, entering information into a web form, or clicking on an a checkbox or an “I Accept” button on a web page.
Electronic messages requesting consent are deemed to be CEMs. Therefore, you can only use an electronic message to request a person’s express consent if you already have their implied consent. Essentially, you are “converting” implied consent into express consent. For example, when a person volunteers for York, York has their implied consent to send the person CEMs for the next two years. You can “convert” this from implied to express consent by emailing the person a consent request.
Requests for express consent must contain the following information:
- the specific purpose for which you’re seeking their consent;
- the name of the York University unit seeking consent;
- the mailing address, and a telephone number, email address or web address, for the York University unit seeking consent (or a link to a website containing this information); and
- a statement indicating that the person whose consent is sought can withdraw their consent.
In addition to requesting the individual’s express consent, it is also necessary to provide a privacy statement explaining your legal authority to collect personal information from the individual. See CASL: Privacy and Collecting Personal Information for more details.
Consent must always be “opt-in”, not “opt-out”. This means that if you are using a check box for consent, the box cannot be pre-checked.
Keep a Record of the Consents You Have Secured
This is absolutely essential. If you send a CEM without being able to prove that the recipient has consented to receive it, you are placing York University at risk of breaching CASL.
