Canada: Spamming Will Soon Be Illegal And Contrary To Public Policy

Last Updated: May 30 2014
Article by C. Yvonne Chenier

Canada's anti-spam law will come into force on July 1, 2014. This legislation intends to stop unsolicited commercial electronic messages and unwanted spyware and malware from being transmitted and installed on our computers. It will impact commercial activity in the charity and not-for-profit sector because commercial activity defined in this legislation could occur "whether or not the person who carries it out does so in the expectation of profit". Spamming will be against the law on July 1st unless it is sent in compliance with the new legislation. There will be a place and procedure where anyone who feels they have been spammed to report it to the government on a website appropriately called (

There is some relief for charities. In the final regulations it has been made clear that there will be an exception for a commercial electronic message "that is sent by or on behalf of a registered charity as defined in subsection 248(1) of the Income Tax Act and the message has as its primary purpose raising funds for the charity". There is no such relief for not-for-profit organizations that are not registered charities.

Registered Charities - do not spam!

Registered charities will still need to purify their messages to ensure that the primary purpose is raising funds for the charity to fall under the exemption and to avoid potential issues with their charitable status. Fundraising by Registered Charities, CG-013, issued April 20, 2012, bears further scrutiny in light of the new anti-spam law ( This guidance has a section entitled "When is fundraising not acceptable?" It answers the question in the positive by saying that fundraising is acceptable unless it is described in a delineated list. It states:

"Fundraising by registered charities must be conducted within legal parameters. Fundraising is acceptable unless it:

  • is a purpose of the charity (a collateral non-charitable purpose);
  • delivers a more than incidental private benefit (a benefit that is not necessary, reasonable, or proportionate in relation to the resulting public benefit);
  • is illegal or contrary to public policy;
  • is deceptive; or
  • is an unrelated business.

Charities that engage in unacceptable fundraising cannot be registered under the Income Tax Act because they are not constituted and operated exclusively for charitable purposes, or they are not devoting their resources to charitable purposes and activities."

``Illegal or contrary to public policy``

In light of the new anti-spam law soon to be relevant to charities fundraising practices, the specific prohibition against fundraising activities that are illegal or contrary to public policy deserves first mention. The guidance gives examples worth considering.

Examples of Fundraising activities that are illegal.

The guidance says:

``Examples of illegal fundraising activities are those that are criminally fraudulent, or violate federal or provincial statutes governing charitable fundraising, charitable gaming, the use of charitable property, or consumer protection.``

This is a very wide net and could include failing to comply with the new anti-spam law. The CRA could consider unlawful fundraising electronic communications in the same light as stealing from the elderly, which would no doubt be considered to be a criminal offence. In this respect charities should really govern themselves accordingly and prepare to comply with anti-spam rules in all of their fundraising communications If they do not or choose not to understand and comply with all that governs them, they may be doing so at their own peril.

Examples of fundraising activities that are contrary to public policy.

The guidance says:

`` For example, making a fundraising solicitation that does not comply with Canadian Radio-television and Telecommunications Commission directives or telemarketing rules, or other established government policy, may be considered contrary to public policy.``

This seems to speak directly to the new anti-spam rules. Indeed the Canadian Radio-television and Telecommunications Commission (CRTC) has published final regulations related to Canada's anti-spam legislation. A copy of the regulations can be found on the CRTC website This is where all the details are about what you can and cannot do. So if a charity wants to send out a message that does not have as its primary purpose raising funds for the charity it needs to comply with the regulations just like everybody else does.

What is prohibited?

Firstly it is "prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless the person to whom the message is sent has consented to receiving it, whether the consent is express or implied". For the not-for-profit sector, it is helpful to note the Act defines an "existing non-business relationship" as one arising (in the last 2 years before the message was sent) from a donation or gift to or volunteer work for a registered charity, or membership in a club, association or voluntary organization (as defined by the regulations). Regardless of how an organization defines "membership" or any commonly used definition of a club, association or voluntary organization, the regulations under this Act prescribe that "membership" is the status of having been accepted as a member of a club, association or voluntary organization in accordance with its membership requirements. Furthermore the prescribed definition under this Act of a club, association or voluntary organization is one that "is organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than personal 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 whose primary purpose is the promotion of amateur athletics in Canada." (emphasis added).

Note that this is a slightly different definition than the one used in the Income Tax Act where a not-for-profit is defined in section 149(1)(l) as " a club, society or association that, in the opinion of the Minister, was not a charity within the meaning assigned by subsection 149.1(1) and that was organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any other purpose except profit, no part of the income of which was payable to, or was otherwise available for the personal benefit of, any proprietor, member or shareholder thereof unless the proprietor, member or shareholder was a club, society or association the primary purpose and function of which was the promotion of amateur athletics in Canada." (emphasis added).

Seeing the words "personal profit" instead of just "profit", clarifies that consent could still be implied for those organization that otherwise meet the definition, but who still intend to "profit" from their activities in a way that will not benefit a person individually. This is a very interesting clarification and one that will be welcomed by those organizations that are indeed profitable but where every cent from the fruits of their labour goes back to their cause but need to maintain communication with their supporters.

What are the conditions for use of consent?

Secondly, one should treat consent with respect. A commercial electronic message must be in a form that has very specific requirements including identification of the person who obtained the consent, the sender's identity and contact information (must be valid for a minimum of 60 days), a withdrawal of consent mechanism and a prescribed unsubscribe mechanism. It may not be unusual to see the legally required part of the message be much longer than the message itself. We may be reading a lot of fine print in our emails from now on. How small can a font be?

What is an organization to do?

As with most legislation there are exceptions. The prohibition will not apply to a commercial electronic message that is an interactive two-way voice communication between individuals or sent by facsimile or voice recording to a telephone account. That is what the National Do Not Call List registration procedure deals with. The Act does not apply to broadcasting a message in the old fashioned way (as defined subsection 2(1) of the Broadcasting Act). Perhaps personal one to one communication will come back into vogue or we will see more commercials paid for by the sector.

But don't wait for July 1st to prepare. It is now time to start to train all staff and volunteers who deal with electronic communication about these new requirements and get ready to comply. No organization wants to find themselves the subject of a complaint on the spam reporting centre, and/or or the subject of the revocation process by the CRA charities directorate because of fundraising communications that do not comply with the new anti-spam laws and are therefore considered either Illegal or contrary to public policy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.