The government announced before the start of the New Year that Canada’s Anti-Spam Legislation (CASL) will come into effect on July 1, 2014. As such, charities and nonprofits will have just a couple of months to comply before the implementation date. Below is a summary of items to review that will assist organizations in preparing for CASL.
What happens on July 1, 2014?
The new legislation will regulate the sending of a commercial electronic message (CEM). A CEM encourages participation in a commercial activity, i.e., offering to sell a product, or providing a business or gaming opportunity. CASL prohibits the sending of a CEM unless the sender has consent from the receiver and the CEM includes certain prescribed information.
When CASL comes into force, existing implied consents through business or non-business relationships (described below) will continue for a three-year period unless the recipient indicates they no longer wish to receive CEMs from the sender. CEMs, though, will still need to comply with the form requirements under CASL, even if there is implied consent.
Are there any exemptions?
The regulations under CASL exempt a 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” (emphasis added). This exemption will provide significant relief for registered charities, although it is not clear to what extent a CEM may include commercial purposes before it will no longer have a ‘primary purpose’ of raising funds. It is hoped that guidance will be forthcoming from the CRTC concerning how ‘primary purpose’ is to be interpreted in order to provide best practices for charities.
What if I had consent under PIPEDA?
Many charities and nonprofits will have already obtained consent for the purposes of compliance with Personal Information Protection and Electronic Documents Act (PIPEDA), due to overlapping privacy laws across Canada. In most cases, such consent will not be sufficient for CASL because they were often obtained through an opt-out mechanism. CASL, however, requires the receiver of a CEM to have expressly consented to its receipt (unless there is implied consent).
How do I obtain consent?
Consent may be implied through an existing non-business relationship. CASL defines a non-business relationship as:
To obtain express consent, the charity or nonprofit must explain the purpose or purposes for which the consent is being sought, i.e., that consent is being sought to send a CEM. Consent may be obtained orally or in writing for the purposes of CASL. The CRTC has published guidance on how consent can be obtained. The guidance notes that requests for consent must not be bundled with requests for consent in general terms and conditions. As such, charities and nonprofits that seek to obtain express consent online or through a physical form should use a separate box or action item for obtaining consent.
What needs to be in a CEM?
CASL requires that the CEM include the name by which the sender carries on business, or the name of the sender, the address, and either a telephone number, email, or web address. If the CEM is sent on behalf of another person, then the name of the sender and a statement indicating on whose behalf it is being sent will be required. The CEM must also include an unsubscribe mechanism. Regulations under CASL require that the unsubscribe mechanism be readily available, which the CRTC states as being a “link in an email that takes the user to a web page where he or she can unsubscribe from receiving all or some types of CEMs from the sender.” Lastly, the request to unsubscribe must go into effect within 10 days of the request being received.
Organizations and their boards may want to update any privacy or communication policies in order to address potential liability and demonstrate due diligence with regards to CASL. Third-parties that work with charities and nonprofits to distribute messaging will also need to take steps to ensure compliance. With the final regulations published and the implementation date now set, it is clear that charities and nonprofits will need to become familiar with CASL and their own communication practices to avoid running afoul of the new legislation.
Ryan is a regular speaker and author on the topic of directors’ and officers’ liability for not-for-profit corporations, and has co-authored papers for Law Society of Upper Canada. In addition, Ryan has contributed to several Charity Law Bulletins and other publications on www.charitylaw.ca, and is a regular presenter at the annual Church and Charity Law seminar. Contact him firstname.lastname@example.org.