The Canadian government has passed legislation that will
prohibit the sending of commercial electronic messages unless the
messages meet both consent and content requirements. While there
are provisions in the legislation that will assist not-for-profit
organizations ("NFPs") and charities in certain
circumstances, NFPs and charities do have to comply with the law as
there is no general exemption for these organizations.
The legislation has a long official name but is being called
"CASL", which stands for "Canada's
On December 4, 2013, the Canadian government announced that most
provisions of CASL will come into force on July 1, 2014. Certain
sections of CASL relating to computer programs and software will
come into force on January 15, 2015. The final regulations
("Regulations") were also published. These Regulations
are the result of a lengthy consultation process that the
government had with businesses and other stakeholders.
Now that a date has been set for CASL to take effect, any
person, business or organization that sends commercial electronic
messages (such as email and text messages) ("CEMs") needs
to take action to make sure they comply. Keep in mind that although
CASL refers to "spam", the law is drafted so that it
applies to a much broader array of messages than would normally be
regarded as spam.
Technically, a single email sent to a person that has a
commercial purpose falls under CASL. In addition, since CASL
applies to CEMs sent from or accessed in Canada, persons located
outside Canada will also need to comply if they send CEMs to
recipients in Canada.
The key requirements of the new law are:
Consent – The recipient of the CEM must
have given his or her consent to receive CEMs. The consent can be
expressly given, such as a recipient signing a document or checking
a box on a form, indicating his or her consent to receiving these
kinds of messages from the sender. The consent must be specific
about the type of CEMs that will be sent - e.g., marketing emails,
product updates, promotions, and/or newsletters – and cannot
can be obtained verbally, but adequate records should be kept to
demonstrate that consent was given.
Content of the Message – The CEM must
contain the name of the sender and its contact information (address
and telephone number, email or website). If the sender is sending
the CEM on behalf of a third party (e.g., a marketing agency is
sending an email blast on behalf of its client), the sender must
identify the person on whose behalf the message is being sent.
Unsubscribe – The CEM must contain a
no-cost mechanism that allows the recipient to unsubscribe from
receiving future CEMs. A request to unsubscribe must be implemented
within 10 business days.
Failure to comply with CASL can have serious consequences. The
administrative monetary penalties for a violation are up to $1
million for individuals and up to $10 million for organizations,
The law allows for some exemptions. Use of an exemption requires
careful analysis. There are provisions that exempt the sender from
the consent, content and unsubscribe requirements, while other
provisions only exempt the consent requirement. In other words, the
sender may not be required to obtain express consent from the
recipient to send the message, but may still be required to include
an unsubscribe mechanism and information about the sender in the
Of a particular interest to charities is that CEMs sent by
registered charities (as defined in section 248(1) of the Income
Tax Act (Canada)) that have, as their primary purpose, the purpose
of raising funds for the charity are exempted. Note, however,
that a charity would want to keep the Canada Revenue Agency
guidance on "Fundraising by Registered Charities" in mind
– in other words, it likely would not want to make everything
into a fundraising message. Moreover, any CEMs sent by the
charity which do not relate to fundraising would still need to meet
the requirements of CASL.
Consent may also be implied where CEMs are sent to recipients
with whom the sender has an "existing business
relationship" or "existing non-business
relationship". These terms have a specific meaning in CASL. As
an example relevant to charities and NFPs, "existing
non-business relationship" applies to people who donated to or
volunteered for a registered charity, or who were a member of a
club or voluntary organization, within the two year period prior to
the transmission of the CEM.
CASL has implications for every NFP and charity that uses CEMs
as a marketing or promotional tool. There are many nuances. Please
contact Victoria Prince or Adrian Liu if you need help with
complying with CASL
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