Understanding explicit vs. implicit consent

You will learn

Learn the difference between explicit and implicit consent in Klaviyo and how consent affects who you can email.

There are 2 types of consent:

• Explicit (also sometimes referred to as express consent)
• Implicit (also sometimes referred to as implied or inferred consent)

Explicit consent

Explicit consent occurs when someone directly tells you that they want to receive marketing messages from your brand. For email, examples include:

• Sign up through a form that clearly states they are opting in to email marketing
• Give you their information on an in-person mailing list (in your store or at a booth)
• Tell you verbally that they want to get marketing messages from you and provide you with their contact information

For mobile push notifications, someone gives explicit consent by opting in through the app’s permission prompt.

With explicit consent, the subscriber must knowingly consent to receive marketing messages.

Consent is specific to a channel. An email opt-in does not give you permission to send SMS or mobile push notifications.

Pros and cons of explicit consent

Under Canada’s Anti-Spam Legislation (CASL), express consent does not expire, but a subscriber can withdraw it at any time. In Klaviyo, consent and suppression are separate: a subscribed email profile can still be suppressed, for example, after a hard bounce or a manual suppression. Check consent and suppression on the profile before sending.

Express consent is required to send SMS messages using Klaviyo. Collect SMS consent separately from email consent; having someone’s phone number or email consent is not enough. See the SMS consent guide for collection requirements. Email consent requirements depend on the laws in a recipient’s country. For instance, Canada’s Anti-Spam Legislation requires express consent for all commercial electronic messages except in specific circumstances.

One con with express consent is that fewer people will explicitly opt in than implicitly opt in. Thus, list growth might be slower, but those who do subscribe will be higher-quality contacts than those who haven’t knowingly or explicitly consented.

Implicit consent

Implicit consent is when permission to send marketing can be inferred from someone’s relationship with your brand, rather than an explicit opt-in, where applicable law allows it. A common example is a customer who makes a purchase and provides their email at checkout without agreeing to receive marketing emails. That relationship can support implied consent in some jurisdictions, but simply having their contact information does not establish permission to send marketing.

In Klaviyo, Never subscribed means that a profile has neither opted in to nor opted out of email marketing. This status does not establish that you have legally valid implied consent. Check the applicable consent rules before emailing these contacts.

Situations that can support implied consent, depending on applicable law, include:

• Signing up for gated content or resources (e.g., a forum, article, Wi-Fi network, etc.)
• Inputting contact information during checkout (if they haven’t checked a box or otherwise agreed to receive marketing messages)
• Giving you a business card
• Buying or leasing a service, good, or product from you
• Agreeing to a contract (written or electronic) with you
• Partaking in a gaming or investment opportunity with you
• Making a donation to you (if you are a registered charity or political organization)
• Volunteering for you (if you are a registered charity or political organization)
• Being a member of your organization’s club, association, or non-profit volunteer group

The laws around implied consent vary by country; when implied consent is allowed, it may be restricted to a certain time frame (e.g., 2 years) or specific circumstances.

Pros and cons of implicit consent

A pro of implied consent is that you can gather a lot more contacts with implied consent than express consent. However, since these contacts haven’t actually agreed to receive marketing messages from your brand, they are more likely to opt out or mark you as spam, leading to deliverability issues. If there are enough complaints, you can wind up on blocklists for email service providers (e.g., Gmail and Yahoo).

Implied consent is not allowed in certain jurisdictions, and in others, it’s only allowed under special circumstances. Thus, by relying on implied consent, you risk running into compliance issues, depending on where your recipients are located.

Implied consent can expire under applicable law and is not allowed when using Klaviyo SMS.

Best practices for consent

There are a few best practices for consent you should follow:

• Get express consent/avoid sending to those with implied consent
• Make it clear what recipients are opting into
• Record the method of consent collection (i.e., when, where, and how someone gave express consent)
• Use double opt-in

We recommend getting express consent whenever possible. If you collect implied consent and it’s allowed in a jurisdiction you send to, use a separate list for those with implied consent. Retarget these contacts to try to obtain their express consent, such as targeting them via social media or sign-up forms.

Additional resources

• Understanding the double opt-in process
• Learn more about SMS compliance