Every company or party sending out CEMs should establish and utilize a database that logs the express consents acquired. Consent may be obtained orally or in writing, and the onus is on the sender of a CEM to prove that consent was acquired. If you have obtained express consent (which does not expire), then you would have followed (what CASL calls) documentation.

However, care must be taken with regards to social networking sites. If someone likes or follows your page, it will not automatically follow true documentation of express consent as required by CASL. Steps taken to request express consent should be documented and stored properly for future purposes in the event that any claim or objection arises. Courts will consider any attempts made to get express consent and efforts to comply with CASL rules. This is important because any person alleging to have obtained consent bears the evidential burden of proving such consent.

Therefore, it will be important for companies to implement clear policies that provide for the proper documentation of consent and the continuous updating of customer email lists and databases. In many cases, companies will need to obtain “fresh” consent from their customers to ensure that they are CASL-compliant with proper documentation. Oral consent may be verified through an independent third party or by using a complete unedited audio recording.

 

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