The Canadian government has passed legislation that will prohibit the sending of commercial electronic messages unless the messages meet both consent and content requirements. While there are provisions in the legislation that will assist not-for-profit organizations ("NFPs") and charities in certain circumstances, NFPs and charities do have to comply with the law as there is no general exemption for these organizations.
The legislation has a long official name but is being called "CASL", which stands for "Canada's Anti-Spam Law".
On December 4, 2013, the Canadian government announced that most provisions of CASL will come into force on July 1, 2014. Certain sections of CASL relating to computer programs and software will come into force on January 15, 2015. The final regulations ("Regulations") were also published. These Regulations are the result of a lengthy consultation process that the government had with businesses and other stakeholders.
Now that a date has been set for CASL to take effect, any person, business or organization that sends commercial electronic messages (such as email and text messages) ("CEMs") needs to take action to make sure they comply. Keep in mind that although CASL refers to "spam", the law is drafted so that it applies to a much broader array of messages than would normally be regarded as spam.
Technically, a single email sent to a person that has a commercial purpose falls under CASL. In addition, since CASL applies to CEMs sent from or accessed in Canada, persons located outside Canada will also need to comply if they send CEMs to recipients in Canada.
The key requirements of the new law are:
- Consent – The recipient of the CEM must have given his or her consent to receive CEMs. The consent can be expressly given, such as a recipient signing a document or checking a box on a form, indicating his or her consent to receiving these kinds of messages from the sender. The consent must be specific about the type of CEMs that will be sent - e.g., marketing emails, product updates, promotions, and/or newsletters – and cannot be buried in the terms and conditions or privacy policy. Consent can be obtained verbally, but adequate records should be kept to demonstrate that consent was given.
- Content of the Message – The CEM must contain the name of the sender and its contact information (address and telephone number, email or website). If the sender is sending the CEM on behalf of a third party (e.g., a marketing agency is sending an email blast on behalf of its client), the sender must identify the person on whose behalf the message is being sent.
- Unsubscribe – The CEM must contain a no-cost mechanism that allows the recipient to unsubscribe from receiving future CEMs. A request to unsubscribe must be implemented within 10 business days.
Failure to comply with CASL can have serious consequences. The administrative monetary penalties for a violation are up to $1 million for individuals and up to $10 million for organizations, per violation.
The law allows for some exemptions. Use of an exemption requires careful analysis. There are provisions that exempt the sender from the consent, content and unsubscribe requirements, while other provisions only exempt the consent requirement. In other words, the sender may not be required to obtain express consent from the recipient to send the message, but may still be required to include an unsubscribe mechanism and information about the sender in the message.
Of a particular interest to charities is that CEMs sent by registered charities (as defined in section 248(1) of the Income Tax Act (Canada)) that have, as their primary purpose, the purpose of raising funds for the charity are exempted. Note, however, that a charity would want to keep the Canada Revenue Agency guidance on "Fundraising by Registered Charities" in mind – in other words, it likely would not want to make everything into a fundraising message. Moreover, any CEMs sent by the charity which do not relate to fundraising would still need to meet the requirements of CASL.
Consent may also be implied where CEMs are sent to recipients with whom the sender has an "existing business relationship" or "existing non-business relationship". These terms have a specific meaning in CASL. As an example relevant to charities and NFPs, "existing non-business relationship" applies to people who donated to or volunteered for a registered charity, or who were a member of a club or voluntary organization, within the two year period prior to the transmission of the CEM.
CASL has implications for every NFP and charity that uses CEMs as a marketing or promotional tool. There are many nuances. Please contact Victoria Prince or Adrian Liu if you need help with complying with 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.
