Canada’s Anti-Spam Legislation
On December 4, Federal Minister of Industry James Moore announced that Canada’s Anti-Spam Legislation (CASL) will come into force on July 1, 2014. The legislation is intended to deter spam and other damaging and deceptive electronic threats. CASL applies to commercial electronic messages (CEMs), which are defined as messages in which:
- the content;
- hyperlinks to other content;
- or contact information in the message
can reasonably be interpreted as having as its purpose (or one of its purposes), “to encourage participation in a commercial activity”.
What it means for charities and nonprofits
The implications are not yet fully known. What we do know is that an exemption for messages sent by registered charities that have raising funds for the charity as their primary purpose was recently added to the regulations supporting the law. According to the government release, “Canadian charities, which operate based on the generosity of Canadians, will be able to continue fundraising as before.”
Charities will still need to distinguish between commercial messages used to raise funds and those that include the promotion of commercial activities that are not considered to be fundraising activities.
All commercial electronic messages sent by nonprofits that are not registered as charities (including those intended to raise funds) will still fall under CASL.
For those messages not exempted from the regulations, organizations will need to:
- Obtain consent from recipients before sending commercial electronic messages.
a) Consent will be “implied” in the case of members, donors or volunteers that have been active in the two years immediately prior to the date the message is sent.
b) Consent is also implied if the recipient’s electronic address is conspicuously published or is disclosed to the sender and is not accompanied by a statement indicating they do not wish to receive commercial electronic messages. Additionally, the message must be relevant to the recipient’s business, role, functions or duties.
2. Include the sender’s identifying information and provide information to enable recipient to contact the sender.
3. Enable the recipient to withdraw consent (unsubscribe option).
Excluded Messages
There are a number of additional types of messages that are excluded. For example:
- Messages sent to individuals where there is an existing personal or family relationship.
- Messages sent between employees, representatives, and consultants of organizations that have a relationship and the message concerns the activities of the recipient organization.
- Messages sent in response to a request, inquiry or complaint or that are otherwise solicited by the person to whom the message is sent.
- The first commercial electronic message sent to a recipient that has been referred to the sender by someone who has an existing business, non-business, family, or personal relationship, provided the name of the referring individual is included in the message.
A full listing can be found under “Excluded Commercial Electronic Messages” in the regulations document.
The potential financial and administrative implications, especially for nonprofits that aren’t registered as charities, are significant. Organizations sending CEMs will be required to track recipients by those who have implied consent (by being active in past 2 years as stated above) and those who have provided express consent.
Organizations that fail to comply with legislation face the threat of significant monetary penalties and expose employees and board members to personal liability.
Outstanding questions
CCVO and colleague organizations will continue to monitor developments and interpret the final regulations for Canada’s Anti-Spam Legislation (CASL). Currently, we are
- Seeking a fuller understanding of what constitutes a “commercial activity” within the continuum of activities in which charitable and nonprofit organizations engage.
- Assessing the impact on nonprofits not registered as charities.
More information can be found at:
Industry Canada’s Anti-Spam Legislation Website
Includes background, rationale, FAQ’s, and links to legislation and regulations.
Related Information:
CRA’s Guidance on Fundraising by Registered Charities
Miller Thompson: Suggestions for Compliance Preparation
ONN: Top Ten Things Nonprofits Need to Know about CASL
Preparation tips in Carters’ Charity Law Bulletin
Information Sessions hosted by Industry Canada and the CRTC