There has been some debate about whether municipal governments
are subject to Canada's Anti-Spam Legislation
("CASL") or whether, like the provincial and federal
governments, municipal governments are exempt from CASL.
The CRTC , which is the primary enforcement agency for CASL, has
published FAQs on its website, which include the following
"CASL does not apply to the
activities of the federal, provincial and territorial governments.
CASL does apply, however, to crown corporations, including
municipal governments, when the corporation is acting in
the course of any commercial activity" (emphasis added).
While we are not convinced that municipal governments are
"crown corporations," it is clear that the CRTC considers
municipal governments to be potentially subject to CASL, depending
on their activities.
Federal and provincial governments are not bound by CASL because
of a provision in the federal Interpretation Act which
states: "No enactment is binding on Her Majesty or affects Her
Majesty or Her Majesty's rights or prerogatives in any manner,
except as mentioned or referred to in the enactment".
CASL provides that it is binding on any corporation expressly
declared by statute to be an agent of Her Majesty, when the
corporation is acting as such in the course of any commercial
activity. CASL also states many of its requirements as applying to
a "person," and "person" is defined in CASL to
include a "corporation." Incorporated municipalities are
considered "corporations" and are generally not
considered to be agents of Her Majesty for the purposes of Crown
Is That Email a "Commercial Electronic Message"?
Municipalities Need to Check
Local governments should be reviewing the electronic messages
they send out, in order to determine whether these electronic
messages fall within the broad definition of a "commercial
electronic message" ("CEM") under CASL. If
one of the purposes of an electronic message is to
"encourage participation in a commercial activity," it is
a CEM under CASL. "Commercial activity" does not require
an expectation of profit. However, "commercial activity"
does not include conduct carried out for the purposes of law
enforcement or public safety.
Clearly, many electronic messages sent by local governments will
not encourage participation in a commercial activity, and will
relate solely to law enforcement, safety, municipal council
meetings and other non-commercial matters. Certain CEMs sent by
local governments may also fall within an exception in CASL or the
associated regulations. Local governments cannot, however,
assume that nothing they do falls within CASL. Electronic messages
relating to municipal programs, activities or facilities offered
for a fee will need to be carefully considered by local governments
in relation to CASL.
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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