Customers Whose Implied Consent Runs Out This Year

A list that shrinks without anyone noticing

Many small business mailing lists were built from customers. Someone bought something, their email address went onto the list, and the newsletter has gone to them ever since.

Under Canada's Anti-Spam Legislation, CASL, that purchase gives the business implied consent to send commercial email, but only for two years from the purchase.

So a customer whose last purchase was in the second half of 2014 reaches the end of that consent at some point this year, on the second anniversary of the sale. The email software does not know, and keeps sending.

This post is a general summary of the rule, not legal advice. The mechanism is simple enough to check this week.

Two kinds of consent

Express consent is a definite yes: a box ticked, or a form filled in, agreeing to receive your email. It holds until the person takes it back.

Implied consent comes from the relationship instead. A purchase gives two years; an enquiry that did not lead to a purchase gives six months.

A few other relationships count too, such as a written contract, but purchases are where most small business lists come from.

The clock runs from the most recent purchase, so a regular customer renews it every time they buy. The people who drop off are the ones who bought once, or stopped.

Where the addresses came from

• People who signed up on the website or a form.
• Customers added after buying online or in the shop.
• People who enquired but never bought.
• Contacts from business cards and trade shows.
• Addresses imported from an old system with no record at all.

The second group is usually the largest, and the one with a deadline. Each address carries its own date, and most mailing lists do not record it anywhere.

Relationships older than CASL

There is one complication. Where a relationship existed before CASL took effect on July 1, 2014, and already included commercial email, implied consent continues until July 1, 2017 unless the person withdraws it.

That covers customers who were already getting your email before the law arrived. It postpones their deadline; it does not remove it.

Everyone who first bought after that date is on the plain two-year rule, so the earliest of them reach their limit this July.

Record the purchase date

The fix starts with information most businesses already hold. The online shop or the point-of-sale system knows when each customer last bought.

Export each customer's email address and last purchase date, and add the date to the matching subscriber in the mailing list. Most email services allow extra fields for exactly this.

Mark every subscriber as express or implied, with the date and the source. If a business ever has to show it had consent, it is the sender who must prove it, not the recipient.

For express consent, keep a record of how it was given: the form, the wording beside the box and the date. A screenshot of the sign-up form, saved each time it changes, answers most questions later.

Ask while the relationship is warm

The best time to ask for express consent is while implied consent still exists: in the newsletter, on the receipt, at the counter, in the email confirming an order.

Make the request plain. Say what you will send and how often, who you are, and how to stop the emails whenever they like. Use a box the customer ticks themselves, never one ticked in advance.

There is a legal reason for the timing as well. Under CASL, asking for consent by email counts as sending a commercial message, so once implied consent has lapsed, that request is no longer allowed either.

A worked example

A map and travel bookshop on a neighbourhood shopping street sells guidebooks, road and hiking maps, phrasebooks and travel gear, and hosts evening talks by travellers back from somewhere interesting.

It opened an online shop in the autumn of 2014 and added every online customer to its monthly email about new arrivals and upcoming talks.

Most of those customers had bought once, before a particular trip. That suits the trade: people buy a guide to Portugal, go, and may not need another book for years.

Planning the year last month, the owner realised the earliest of those purchases would pass two years this autumn, and the email service had no idea when anyone had bought anything.

The shop exported purchase dates from the online store into the list, and began adding a short request to each newsletter, with one button to confirm, aimed first at those whose two years end soonest.

Receipts in the shop now carry a short web address for signing up. Customers who never confirm will drop off when their two years end, and become eligible again if they buy.

People who never answer

Some will not respond however often you ask. When their implied consent ends, stop sending them commercial email. A segment in the email service built on the purchase date can do it automatically.

They have not unsubscribed, and they are not lost as customers. Receipts, order confirmations and warranty information are not promotions, and can still be sent when they next buy.

Unsubscribes still come first. Every commercial email needs a working unsubscribe, and a request must be honoured within ten business days, whatever kind of consent the person gave.

The counter-case

A business whose customers buy often has little to do here, since nobody who buys every month comes near the two-year limit.

A business that sends only receipts and confirmations, with nothing promotional, is not relying on consent for those messages at all.

And a list trimmed to people who said yes is also less likely to have its email marked as spam. Record the dates, ask while the relationship is warm, and let go of the rest when their time is up.

Before the two years end

1. Export last purchase dates from your shop or till.
2. Add them to each subscriber's record.
3. Mark each subscriber as express or implied.
4. Find everyone whose two years end in 2016.
5. Ask them for express consent before that date.
6. Add a sign-up box at checkout.
7. Build a segment that drops lapsed customers automatically.

Step five is the one with a deadline built in. Once a customer's implied consent has lapsed, even an email asking for their consent is off limits, so the request has to go out while it still applies.

The people who enquired last year and never bought have a shorter clock, and they are the subject of the enquiries your business lost last year.

Frequently asked questions

West Coast Media Solutions Inc. provides web design, web development, hosting, digital marketing, and business consulting to organisations across Canada, drawing on more than twenty-five years in the field.