By Johanna Schwartz, Communications Coordinator
The Canadian Anti-Spam Legislation took effect July 1, and still many nonprofits and charities are struggling to understand what exactly they need to do to get their organization compliant with the law when sending Commercial Electronic Messages (CEMs).
Getting some charity clarity
While nonprofit organizations will have to follow the same rules and regulations that businesses are now compelled to follow, charities have been given a key exemption. This exemption pertains to any CEM “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.”
This immediately raised questions around the definition of an activity whose primary purpose is raising funds for the charity. Would hosting a workshop or event that includes a ticketed admission price be considered raising funds for the charity, even if a portion of the ticket cost went to cost recovery? Would it involve only those transactions that are used by charities to calculate their fundraising ratio in reports to the CRA?
Doing the good work, Imagine Canada persisted through a series of back and forth conversations between Industry Canada (who drafted the legislation) and the CRTC (who will enforce the legislation). Industry Canada told Imagine Canada that they would include other ‘non-CRA’ definitions of fundraising to be exempt. The CRTC countered with a statement that there are “inconsistencies between their [CRTC’s] interpretation of the exemption for commercial electronic messages sent by registered charities, and that of Industry Canada.”
On July 4, CRTC has seemingly come on board with Industry Canada’s initial interpretation, and has now added more information to its FAQ page.
State your purpose
As it now reads, the definition of raising funds now extends beyond CRA-defined fundraising to include activities such as concerts, workshops, dinners, tournaments and the like. The rule of thumb being that as long as the monies raised are redirected back to the charity, the activity is deemed to be fundraising. For most charities, this means a complete exemption for all of their CEMs.
Watch your sponsor logos
The one caveat that needs to be considered is the placement of corporate sponsor logos in your emails and signatures. According to the CRTC, if you are sending out an email, say, about an upcoming conference, and the event has corporate sponsorship, as long as the primary purpose of the email is to encourage raising funds (eg: ticket sales that go back to you, the charitable organization), including logos and links to the sponsors’ websites is ok.
As stated on the CRTC FAQ page:
A registered charity sends, by e-mail, a newsletter which provides information about the charity’s activities or an upcoming campaign, but which also contains a section which solicits donations and may also mention corporate sponsors who supported the charity (but does not encourage the recipient to participate in a commercial activity with that sponsor). While this message may be considered a CEM under CASL, the primary purpose of the message may be viewed as raising funds; therefore, the exemption in the GiC [Government in Council] Regulations would apply.
BUT, if your email is primarily informational (with no intent to raise funds) AND you include a logo/link to a corporate sponsor, the email is NOT exempt, as it includes implied commercial intent by including a link to a corporate entity.
As stated on the CRTC FAQ page:
A registered charity sends, by e-mail, a newsletter which provides information about the charity’s activities or about a particular social issue. If this e-mail also advertizes the corporate sponsors of a charity’s event and encourages the recipient to participate in a commercial activity with that sponsor, then section 6 of the CASL may apply without any exemption. The primary purpose of the message may not be to raise funds for the charity.
The optics of exemption
Are you experiencing a deluge of opt-in emails? Regardless of whether an organization sends out commercial emails, or whether they are an exempt charity, it seems almost everyone is seeking express consent anyway.
Of course, best practices dictate that you should really only be sending to those who want to receive your information, and an ‘unsubscribe’ option should always be available. Most organizations I know have already been doing their due diligence to ensure their messages are welcome, and their existing lists have been obtained through an ‘opt-in’ process. So why hop on the CASL bandwagon, even if you are nonprofit sending non-commercial messages, or a charity with exemption?
The concerns I have heard from my colleagues involve perceptions of general public on compliance with CASL. It is telling that CRTC received more than 1000 complaints in the first four days, indicating that the public is aware of the legislation. But how can a lay person understand the nuances of the legislation, when we are struggling to understand it ourselves?
The concern that has been shared is that people will think that those who don’t request consent are flying in the face of CASL. For many communications professionals, it seems a simpler path to engage in the consent process regardless, rather than attempt to message their exemption to their audiences. In fact, the government’s own Anti-Spam website boldly states “Better Safe than Sorry.”
But if we all decided it’s ‘easier’ to just go ahead and follow CASL’s terms, what was the point of the hard work put into getting the exemption in the first place?
The onus is unfortunately on the organization (nonprofit or charity) to take a good hard look at the content of their electronic communications and the origin of their existing contact lists before they decide to add to the noise of express consent requests. And the handling of the legislation has made it very difficult to get an immediate understanding of where your organization may fall within the guidelines. So it is understandable that it may be easier to just blanket-email your entire contact list, but as we have all seen, this is (ironically) resulting in many more emails in everyone’s inbox.
So before you send out that request for consent, call the CASL hotline at 1-800-328-6189 and keep asking questions until you feel confident you understand where your organization falls within the guidelines. And if you are still lacking clarity, ask your MP for help 🙂
For our own purposes, CCVO (ourselves a registered charity) has spoken to the CRTC and Industry Canada, and has determined that our bi-weekly e-bulletin, is not considered exempt because it often includes links to buy tickets or register for workshops and events put on by nonprofits and other non-charitable organizations. So we will be staying in compliance with CASL.
The biggest challenges are going to be for smaller nonprofits who have not previously been using a CRM (Customer Relationship Management) tool like Constant Contact, MailChimp or Raiser’s Edge, to track sign-ups and allow for unsubscribe options. The good news is that for smaller lists the software can be relatively cheap, or even free, and it comes with built-in analysis tools that will help communicators better understand their audiences. Of course, the bad news is that smaller groups are often short of resources to do such an overhaul.
Any new contacts as of July 1 need to be obtained through expressed or implied consent, and are subject to the timeframes as outlined in the CASL legislation. Everyone has three years to whip their existing lists (all contacts obtained prior to July 1, 2014) into implied/express categories.
If your current email list has been obtained solely through expressed consent mechanisms (eg: opt-in processes such as website sign-up forms), your list is already considered a valid expressed consent list, and there is no need for you to ask people to ‘re-subscribe.’
As stated on the CRTC FAQ page:
In contrast, express consent does not expire after a certain period of time has passed. If you obtain valid express consent before July 1, 2014, then that express consent remains valid after the legislation comes into force. It does not expire, until the recipient withdraws their consent.
If you are unsure of how exactly all of your contacts have been added to your list, it may be best to ask for express consent from everyone, rather than spend the onerous administrative time analyzing your history with your contacts. And remember, as of July 1, you can’t request consent as part of the message within a CEM.
At the end of the day, CASL, while in parts confusing and vague, and, by all accounts without reach to really impact our day-to-day spam from phishing emails and Nigerian princes, will, at least, encourage all businesses to assume best-practices in their email communications.
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