How long is implied consent valid for opt-in emails after a content download?

Summary

The duration of implied consent after a content download varies, influenced by regional laws and interpretations. While sources like CRTC and some marketers suggest a 6-24 month window, GDPR emphasizes explicit consent, rendering implied consent less reliable. Experts generally recommend proactively obtaining explicit consent through methods like checkboxes or follow-up emails. Reliance solely on implied consent is viewed as risky, highlighting the need for transparent data collection practices and adherence to evolving regulations.

Key findings

  • Variable Timeframes: Implied consent duration ranges from 6-24 months, contingent on jurisdiction and interpretation.
  • GDPR Emphasis: GDPR prioritizes explicit, informed consent, making implied consent a less secure foundation.
  • Explicit Consent Best Practice: Obtaining explicit consent proactively is widely recommended for email marketing.
  • CRTC Guidelines: The CRTC guidelines suggest the action of filling a form to download a paper could be interpreted as explicit consent.

Key considerations

  • Regulatory Compliance: Staying informed about regional regulations (e.g., CASL, GDPR, Australian Privacy Principles) is essential.
  • Consent Collection Methods: Implement clear and documented consent collection methods to demonstrate compliance.
  • Risk Management: Minimize risks by transitioning towards explicit consent and avoiding sole dependence on implied consent.
  • Transparency: Maintaining transparency in data collection and usage builds trust and supports ethical marketing practices.

What email marketers say
8Marketer opinions

The validity of implied consent for opt-in emails after a content download varies, with estimates ranging from 6 months to 2 years depending on the jurisdiction and specific regulations (e.g., CASL). Several sources recommend obtaining explicit consent as soon as possible, either through a checkbox on the download form or a follow-up email, to ensure ongoing compliance and a stronger subscriber relationship. Relying solely on implied consent carries risks, and proactive transition to explicit consent is generally advised.

Key opinions

  • Timeframe Variation: Implied consent validity ranges from 6 months to 2 years based on jurisdiction and interpretation.
  • CRTC Guidelines: Filling out a form with a whitepaper download might constitute explicit consent according to CRTC guidelines.
  • Explicit Consent Priority: Most sources emphasize obtaining explicit consent for long-term email marketing.
  • Relevance Requirement: Communication under implied consent should be relevant to the downloaded content.

Key considerations

  • Jurisdictional Differences: Consent regulations vary by region (e.g., CASL, GDPR), requiring tailored strategies.
  • Explicit Consent Methods: Implement clear methods to obtain explicit consent, such as checkboxes or follow-up emails.
  • Risk Mitigation: Relying only on implied consent carries legal and compliance risks.
  • Subscriber Relationship: Explicit consent fosters a stronger and more transparent relationship with subscribers.
Marketer view

Email marketer from HubSpot Blog explains that implied consent, obtained from a form submission for a content download, generally lasts for two years. It's recommended to obtain explicit consent for long-term engagement.

February 2022 - HubSpot Blog
Marketer view

Email marketer from ConvertKit Blog explains to think of implied consent as a short-term 'pass' to communicate about very relevant topics related to the content downloaded. They strongly suggest transitioning subscribers to explicit consent as soon as possible.

May 2021 - ConvertKit Blog
Marketer view

Email marketer from Mailjet Blog mentions that implied consent from a content download is usually valid as long as the communication is relevant to the download and within a reasonable timeframe (typically 6-12 months). Actively seeking explicit consent is always the safer approach.

August 2023 - Mailjet Blog
Marketer view

Marketer from Email Geeks shares that if they’re filling out a form and you’re providing them with a whitepaper or something, that could be explicit consent (referencing the CRTC guidelines).

September 2024 - Email Geeks
Marketer view

Email marketer from ActiveCampaign Blog advises to use the content download as an opportunity to ask for explicit consent. They recommend including a checkbox on the download form or sending a follow-up email that requests explicit consent for ongoing marketing communications. Explicit consent removes the uncertainty of implied consent.

December 2022 - ActiveCampaign Blog
Marketer view

Email marketer from MarketingForums.com states that while implied consent might be technically valid for some time (6-24 months depending on jurisdiction), relying on it is risky. The user recommends always aiming for explicit consent at the point of download or shortly after.

March 2024 - MarketingForums.com
Marketer view

Email marketer from Reddit shares that they typically treat implied consent from content downloads as valid for 12-18 months, but strongly recommend implementing a double opt-in process to gain explicit consent, especially for longer-term marketing efforts.

November 2023 - Reddit
Marketer view

Email marketer from Sendinblue Blog suggests that for implied consent gained through content downloads, a good practice is to actively seek explicit consent soon after, as implied consent has a limited shelf life, generally considered to be around six to twelve months depending on local regulations and the nature of the relationship.

November 2021 - Sendinblue Blog

What the experts say
3Expert opinions

Experts generally agree on the importance of obtaining and documenting explicit consent for email marketing. One expert states implied consent can be valid for 24 months, while others emphasize proactive affirmative consent collection is a best practice. Focusing on clear and informed consent, as well as documenting that consent, is key, particularly under GDPR.

Key opinions

  • Implied Consent Duration: Implied consent can be valid for up to 24 months.
  • Documented Affirmative Consent: Collecting and documenting affirmative consent is crucial for compliance and clarity.
  • Informed Consent: Informed consent requires a clear description of why information is requested and clear instructions for the user.
  • GDPR Documentation: GDPR mandates the documentation of consent.

Key considerations

  • Consent System: Implement a system to request and store consent to avoid sending unsolicited emails.
  • Documentation Importance: Maintain records of consent to demonstrate compliance, especially in light of regulations like GDPR.
  • Proactive Approach: Prioritize obtaining explicit consent over relying solely on implied consent.
Expert view

Expert from Spam Resource explains collecting affirmative consent and keeping proof allows you to be clear you have permission. They explain that for non-transactional messages, you must be able to document that someone explicitly requested the emails. A good tip is to create a system to make a consent request and store the response to ensure you aren't sending unsolicited emails.

December 2021 - Spam Resource
Expert view

Expert from Email Geeks explains explicit consent requires certain information be on the form, but you likely have a valid implied consent which is good for 24 months.

September 2021 - Email Geeks
Expert view

Expert from Word to the Wise suggests that focusing on gaining informed consent from users is the best way to protect yourself. They explain the need for a clear description of why the information is being requested and clear instructions of what the user needs to do. They also state that under GDPR it is vital to document the consent.

July 2023 - Word to the Wise

What the documentation says
4Technical articles

Legal documentation from various regions provides differing perspectives on implied consent validity. Canadian law (CRTC) allows for 24 months of implied consent after a transaction like a content download. GDPR (EU and UK) emphasizes explicit, informed consent, making implied consent less reliable and requiring active opt-ins. Australian law also recognizes implied consent but stresses its limited duration and the need for regular explicit consent requests. Overall, relying solely on implied consent is risky and proactive consent strategies are recommended, especially within GDPR jurisdictions.

Key findings

  • CRTC 24-Month Rule: Canadian regulations (CRTC) grant a 24-month window for implied consent after a business transaction.
  • GDPR Emphasis on Explicit Consent: GDPR prioritizes explicit, informed consent, undermining the validity of implied consent alone.
  • Australian Law on Implied Consent: Australian law recognizes implied consent but emphasizes its impermanence and the need for explicit consent.
  • Proactive Consent Recommended: Legal documentation across regions advises against sole reliance on implied consent.

Key considerations

  • GDPR Compliance: Ensure explicit, freely given, and informed consent for GDPR compliance.
  • Consent Refreshment: Regularly refresh consent, particularly in dynamic regulatory environments.
  • Regional Laws: Adapt consent strategies based on specific legal requirements in each jurisdiction.
  • Transparency: Data collection and usage should be transparent to users.
Technical article

Documentation from GDPR.EU explains under GDPR, consent must be freely given, specific, informed, and unambiguous, which generally requires an active opt-in (explicit consent). The length of consent validity depends on the context but emphasizes regular refreshment of consent, rendering reliance solely on 'implied consent' risky.

November 2022 - gdpr.eu
Technical article

Documentation from crtc.gc.ca explains that implied consent lasts for 24 months after a business transaction, which includes downloading content or requesting information. If no action is taken within those 24 months, express consent needs to be obtained.

July 2024 - crtc.gc.ca
Technical article

Documentation from oaic.gov.au explains that under Australian law, consent must be express or implied, and freely given. Implied consent is less reliable and expires when it is no longer reasonable to assume the individual would expect to receive commercial electronic messages. Regularly seeking explicit consent is advised.

May 2023 - oaic.gov.au
Technical article

Documentation from ico.org.uk clarifies that under GDPR, implied consent is not specifically defined, and 'consent' requires a clear affirmative action. Whilst not directly addressing content downloads, it emphasizes that data collection should be transparent and not based on pre-ticked boxes or inactivity. Implied consent is unlikely to be valid unless followed up.

April 2024 - ico.org.uk