Canada’s anti-spam law: frequently asked questions for non-profits and charities

Canada's anti-spam law (referred to as "CASL") will come into force on July 1, 2014.  CASL has serious ramifications for a wide-range of organizations that promote their products, services and activities in Canada.  Many non-profit organizations and charities have raised a variety of questions regarding CASL and its anti-spam regime.  Below are some questions and answers that may assist non-profit organizations and registered charities in their CASL compliance activities.[1] 

1. Does CASL apply to non-profit organizations?

Yes, CASL can apply to non-profit organizations.  CASL applies to an organization that sends "commercial electronic messages".  Email is the most common form of "electronic message" subject to CASL.  However, for CASL to apply, the message must also be "commercial", in that it must, in whole or in part, encourage the participation in commercial activity.

Although many messages sent by non-profit organizations are not commercial, some messages may have a commercial character.  Many non-profit organizations engage in activities that generate revenue: they charge fees for products, services or to participate in activities – for example, membership fees generally, or registration fees for particular events.  Although the non-profit organization is not itself a commercial enterprise, to the extent that it engages in an activity that generates revenue (or has some other commercial character), any electronic message that is sent in support of that activity could be subject to CASL.  Also, if a non-profit organization sends messages that promote another person's commercial activities, those messages could be subject to CASL.

For example, a non-profit organization may circulate a newsletter by email.  As long as that newsletter contains no advertisements for commercial activities (whether of the organization or any other person), then it would not likely be subject to CASL.  If that newsletter did contain these sorts of advertisements, then it may be subject to CASL – and if so, could only be sent in prescribed circumstances (as discussed below).

2. Does CASL apply to registered charities? 

Yes, CASL can apply to registered charities.  CASL applies to registered charities in the same way as it applies to other non-profit organizations – with one significant exception: CASL does not apply to messages that are about charitable fundraising activities.  Specifically, any commercial electronic message (e.g., email) sent by a registered charity that "has as its primary purpose raising funds for the charity" is not subject to CASL.  This broad exclusion likely captures most (if not all) of the types of messages normally sent by registered charities that may otherwise fall under CASL. 

For example, Industry Canada (one of the two government bodies responsible for CASL's regulations) has advised some organizations that it has adopted a broad interpretation of "fundraising" relative to the Canada Revenue Agency's definition of "fundraising".  Under this broad definition of fundraising, the following types of messages would be excluded from CASL:

• messages that promote upcoming fundraising events for a registered charity (even if corporate sponsors of those events are mentioned);
• messages that promote charitable activities where some portion of the funds raised will go to cost-recovery for those activities; and
• messages that promote events where the proceeds of ticket or registration fees will go to the registered charity (e.g., performing arts or cultural institutions).

3. What if a message has a "commercial" character?  Is it subject to CASL?

Not necessarily, as CASL has numerous exclusion provisions.  For example, CASL does not apply to:

• messages sent in response to a request, inquiry or complaint or that are otherwise solicited by the recipient;
• messages sent to a person who is engaged in a commercial activity and consists solely of an inquiry or application related to that activity; or
• messages sent by or on behalf of an individual to another individual with whom they have a personal  or family  relationship (as defined in the regulations to CASL).

Also, there is a provision that excludes fundraising messages sent by registered charities from the scope of CASL, as noted above.

4. Does CASL's anti-spam regime apply to telephone calls, facsimile transmissions or social media?

Although CASL applies to "electronic messages" in a general sense, CASL does not apply to:

• an interactive two-way voice communication between individuals;
• a facsimile message to a telephone account;
• a voice recording sent to a telephone account (e.g., a voicemail message); or
• broadcast messaging, including tweets and social media broadcasts.

For many non-profit and charitable organizations, CASL compliance is largely limited to email messages.

5. What if CASL applies to a given electronic message?

If a message is subject to CASL, an organization can only send the message if all of the following apply:

• there is an authorized basis to send the message – namely, either
  • the sender has the recipient's express consent,
  • the sender has the recipient's implied consent (pursuant to various grounds for implied consent set out in CASL), or
  • the circumstances fall within one of the exceptions to consent set out in CASL;
• the message contains certain content requirements (generally, sender identification and contact information); and
• the message contains an easy to use unsubscribe mechanism.

Organizations will need to review the provisions of CASL that describe the various forms of implied consent and exceptions to consent as part of preparing for CASL. 

6. What should organizations do to prepare for CASL?

It is important that organizations "audit" the types of electronic messages that they send – taking into account the types of messages, the types of recipients and the organization's relationship with those recipients.

Once an organization understands the sorts of electronic messages that it sends, it can then determine which of them is or is likely to be subject to CASL, and take steps to comply with the message content and unsubscribe requirements in CASL.  For example, if a non-profit organization determined that a newsletter has a commercial component, it would then need to assess the various intended recipients to determine whether the organization had their express or implied consent to send the message, or if consent was not needed according to CASL.

Organizations will also need to determine how they will effect an unsubscribe mechanism, which includes tracking unsubscribe requests and giving prompt effect to them (but no later than 10 business days from the date of the request). 

Organizations may decide to insert the required message content together with an unsubscribe mechanism in all or most messages, and without specifically considering whether it is required to do so by CASL.  This is not necessarily an effective approach.  Including an unsubscribe mechanism in messages that are not subject to CASL may be confusing to recipients and/or may have unintended consequences. 

If an organization allows its personnel significant latitude to promote the organization or its activities via electronic messages, that organization should consider adopting an anti-spam policy to help educate personnel and guard against breaches of CASL.