Over a year now has passed since Canada's anti-spam legislation ("CASL") received royal assent. CASL is still not yet in force.
Two sets of draft regulations to CASL were released in the summer of 2011 for consultation. One by Industry Canada, and the other by the Canadian Radio-television and Telecommunications Commission ("CRTC").
Regulations of Industry Canada
The draft regulations from Industry Canada received considerable comment and criticism. In response, the federal government has been holding meetings with some stakeholders to discuss the regulations. Revised regulations from Industry Canada are expected to be published soon.
CASL prohibits the sending of a commercial electronic message ("CEM") unless the recipient has provided consent to receive the CEM, and the CEM sets out certain information, including how to unsubscribe. There is an exception to the foregoing if there is a personal or family relationship. The draft regulations released last summer defined the terms "family relationship" and "personal relationship". Some respondents have expressed concern with the government's requirement that a "personal relationship" must include an in-person meeting between the sender and the recipient of the message.
CASL permits reliance on implied consent if there is an "existing non-business relationship", which includes a relationship arising from membership. The draft regulations explains that "membership" is "the status of having been accepted as a member of a club, association or voluntary organization in accordance with the membership requirements of the club, association or organization". A "club, association or voluntary organization" is defined in the draft regulations to mean "a non-profit organization that is organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than profit, if no part of its income is payable to, or otherwise available for the personal benefit of any proprietor, member or shareholder of that organization unless the proprietor, member or shareholder is an organization the primary purpose of which is the promotion of amateur athletics in Canada."
Regulations of CRTC
In response to the consultation conducted last summer, the CRTC registered its regulations to CASL in March 2012. The regulations set out the information required to be included in CEMs, as well as the information to be included in a request for consent. For example, among other things:
- senders will be required to set out in the CEM, and in their request for consent, their mailing address, and either a telephone number, email address or web address;
- the unsubscribe mechanism must be set out clearly and prominently, and able to be readily performed; and
- a request for express consent to receive a CEM may be made orally or in writing.
Recommendation
Until the regulations to CASL are finalized, CASL is not expected to come into force. Meanwhile we recommend non-profit organizations start reviewing their practice of sending CEMs and determining what changes would be required to comply with CASL, as the period of time of when the regulations are finalized and when CASL will come into force is unknown.
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