Canada is one of the last developed nations to enact anti-spam
legislation however, effective July 1, 2014, that is no longer
going to be the case when the law commonly referred to as
Canada's Anti-Spam Legislation
("CASL") will come into force.
CASL is intended to promote efficiency in the Canadian economy
by regulating all commercial electronic messages
("CEM") being sent and received in
Canada. CASL is widely considered to be the toughest commercial
electronic messaging legislation in the world and, once in force,
will have significant implications for not-for-profit organizations
("NPOs") and registered charities. The
act captures electronic communication well beyond what would
usually be considered a spam e-mail. The definition of CEM casts a
wide enough net to capture any means of electronic
telecommunication including e-mails, text messages, instant
messaging and social media.
CASL broadly prohibits the sending of any CEM that encourages
participation in a commercial activity, regardless of any
expectation of profit. CASL requires that all CEMs be sent only
with the express or implied consent of the recipient and requires
that CEMs contain specific content such as an unsubscribe
mechanism. The consent and content rules within CASL, if not
already convoluted enough, are subject to several exceptions.
Penalties for non-compliance are harsh and range up to
$10 million for corporations or $1 million
for individuals and include the possibility of
personal liability for directors and officers.
The fortunate news for registered charities and NPOs is that
CASL contains two provisions which may help facilitate the
continued communication with a donor base or membership:
(a) Fundraising by a Registered
Charity: The regulations associated with CASL provide that
a CEM sent for the purposes of fundraising is exempt from the
consent and content requirements, regardless whether the recipient
has previously donated to or volunteered for the organization. In
other words, registered charities may continue to solicit donations
via CEM, provided that the communication is primarily for the
purpose of fundraising. However, all other CEMs sent for purposes
other than to fundraise must comply with the consent and content
provisions of CASL unless they too fall within an exception or the
organization has consent from the recipient.
(b) Communication with a
Membership: CASL provides that an NPO (or a charity) has
the implied consent to contact their membership about matters
pertaining to the organization without first obtaining consent
however, matters become more complicated about contacting former or
prospective members. Be sure to include the required content in any
CEM that goes out to the organization's membership.
There has been limited guidance from the Canadian
Radio-Television Commission ("CRTC") on
the interpretation of CASL as it applies to registered charities
and NPOs. The CRTC, however, is expected to issue a guidance
statement and provide more information within the next few weeks
– stay tuned.
Although at first glance the above exemptions may seem
favourable, many CEMs sent by NPOs and registered charities which
are not to the current membership or for the primary purpose of
raising funds will still need to comply with the consent and
content requirements of CASL. NPOs and registered charities should
undertake a thorough examination of CEM policies and practices to
ensure they are onside with CASL or risk being made an example of
by the CRTC.
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.
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