Earlier this month, the Canadian Radio-television and
Telecommunications Commission (CRTC) published a list of Frequently Asked Questions (FAQ) in respect of
Canada's Anti-Spam Legislation (CASL). Many of CASL's
"anti-spam" provisions came into force on July 1,
2014. Registered charities will want to take note in
particular of the CRTC's comments interpreting the scope of the
exemption provided for registered charities sending commercial
electronic messages (CEM) for the primary purpose of raising funds
for the charity.
Below is a summary of the information provided in the CRTC's
FAQ with respect to CASL's application to registered
1. CASL applies to the activities of registered
charities. However, the Regulations to the Act contain an
exemption from the consent and content requirements under CASL
where a registered charity sends a CEM with the primary purpose of
raising funds for the charity.
2. The "primary purpose" of a CEM
means "the main reason or purpose of the CEM". The
message may contain secondary or additional purposes; however the
"principal purpose" must be to raise funds for the
3. Some examples of CEMs in which the
"primary purpose" is raising funds for a registered
charity would include the following:
(a) a CEM promoting an event and/or the sale of
tickets for an event (i.e. dinner, golf tournament, etc.) where the
proceeds of the event flow to the charity;
(b) a CEM which provides information about an
upcoming campaign, but which does not encourage the
recipient to participate in a commercial activity; and
(c) a CEM which includes a solicitation for donations
or mentions corporate sponsors, but does not encourage the
recipient to participate in a commercial activity with that
4. The CRTC states that the "primary
purpose of raising funds" exemption does not include
the sending of a CEM which, amongst other things,
advertises the corporate sponsors of a
charity's event and encourages the recipient to engage
in a commercial activity with the sponsor.
5. Registered charities may rely on implied
consent to send CEMs. Such implied consent is subject to the
prescribed time limitations under the Act.
While we welcome any guidance from the CRTC with respect to its
interpretation of CASL's application to the non-profit sector,
the emphasized phrases above highlight several areas of uncertainty
contained in CRTC's FAQ and in particular its interpretation of
the "primary purpose of raising funds" exemption.
First, the CRTC provides little guidance on what constitutes a
"commercial activity" under CASL in the context of a
registered charity or non-profit organization. This is
relevant to determining whether a given message constitutes a CEM.
On the basis of the definition of CEM in the legislation, it
appears that a gift or donation is not considered a commercial
activity, with the result that an electronic message soliciting a
donation would not be considered a CEM on that basis alone.
It would be helpful for the CRTC to provide confirmation of this
interpretation. This issue, and the scope of the meaning of
CEM, is critical in enabling charities and non-profit organizations
to assess their compliance requirements.
Second, the CRTC's comments suggest that charities may send
messages which "mention" corporate sponsors, but which do
not "advertise" corporate sponsors. The CRTC's
comments do not draw a clear distinction between
"mentioning" and "advertising" in this
Lastly, and further to the second point, the CRTC does not
explain what "encourages" means for the purpose of
discerning whether a CEM "encourages the recipient to engage
in a commercial activity with the sponsor". There are
various instances where charities enter into arrangements with
for-profit organizations in an attempt to raise funds.
Cause-related marketing is one example. Under a cause-related
marketing arrangement, a charity may send out messages that advise
recipients that a portion of all sale proceeds of a certain
for-profit organization will go to the charity. Does this
amount to "encouraging" commercial activity with a
sponsor, such that the exemption for raising funds does not apply,
or is the charity's message still for the "primary purpose
of raising funds"? It is unclear how the CRTC would
analyse such a message or how a charity can know what side of the
line it is on. We hope that the CRTC will issue further
guidance on this issue.
We will continue to keep our readers apprised of any further
guidance that the CRTC may release with respect to CASL's
application to registered charities and non-profit
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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