Canada's Anti-Spam Legislation ("CASL") will come into effect July 1, 2014. CASL applies to every organization in Canada that sends commercial electronic messages, including registered charities and non-profit organizations that use e-mail or text messages to communicate with stakeholders, donors or the public.

Of particular importance to charities and NPOs are the provisions of CASL that will restrict organizations from sending "commercial electronic messages" ("CEMs") without consent of the recipient. Generally, after July 1 an organization can send CEMs only to those recipients who have given consent, either expressly or by certain prescribed types of implication, to receiving messages from the organization. All CEMs must include prescribed content and an unsubscribe mechanism.

While CASL itself provides an exemption for electronic messages from registered charities that have the primary purpose of raising funds for the organization, several questions exist regarding the application of CASL to various other kinds of electronic communications that charities send. For instance, is a charity's newsletter a restricted CEM?

A recent release by Imagine Canada helps to clarify the application of CASL to registered charities and provides some comfort for those that are struggling to comply by the deadline.

The release reports that Industry Canada (one of the agencies that will enforce CASL) has advised that its policy will be as follows:

  • The exemption for "fundraising" communications from registered charities will be interpreted to include all activities that fall under the CRA's administrative definition of fundraising, which includes the sale of goods to raise funds and activities that are indirectly required for effective fundraising, such as recruitment and training of fundraisers and donor recognition.
  • In addition to a broad interpretation of fundraising, communications related to several other activities carried out by registered charities that contain a minor commercial element will be overlooked, including:
    • newsletters that promote upcoming fundraising events, even where mention is made of corporate sponsors of those events;
    • promoting charitable activities that may involve a cost-recovery element; and,
    • the promotion of events and the sale of tickets by organizations such as those of performing arts or cultural institutions, where the proceeds flow directly to the charity.

The release also emphasizes that CASL only restricts the sending of commercial electronic messages, and that messages that are purely informational (including newsletters that do not promote commercial activities) are outside the scope of CASL and are not restricted.

However, electronic communications from a registered charity that are clearly commercial in nature, which potentially includes messages with regard to a charity's related business activities, are within the scope of CASL and a charity will need the consent of recipients to continue to send such messages after July 1.

Unfortunately, it appears that neither the fundraising exemption, nor this administrative policy will apply to non-profit organizations. This means that non-profit organizations will generally need consent in order to send certain electronic communications.  However, many non-profits will be able to take advantage of the implied consent rules, and at least a portion of communications by a non-profit organization (those that have do not promote commercial activities) should fall outside the reach of CASL. Non-profit organizations are also able to send electronic communications to members without restriction.

While the many exemptions, exceptions and rules of CASL are too numerous to describe here, express consent remains the surest way to ensure that an organization can continue to send electronic messages to its audience. Many organizations have begun to seek the express consent of those persons currently receiving electronic messages so that the organization can continue to communicate with them after July 1. For more detailed information on CASL, please see the Bull Housser CASL micro-site here.

We strongly recommend that every charity and non-profit organization carefully consider the impact of CASL on its communications and take appropriate action before the July 1 deadline.

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.