Canada’s anti-spam legislation (generally called “CASL”) comes into force on July 1, 2014. CASL is far-reaching, applies broadly to commercial electronic messages and computer programs, has onerous restrictions, has significant penalties for non-compliance (up to $10 million per violation for organizations), and is not clearly written or easy to follow. You can find more information about CASL and CASL compliance here.
What Messages Are Covered by the Law?
CASL applies to “commercial electronic messages” or “CEMs” – an “electronic message” one of whose purposes (not necessarily the primary purpose) is to encourage participation in a “commercial activity.”
An “electronic message” is any message sent by telecommunication, including a text, sound, voice or image message, and “commercial” means any transaction, act or conduct that is “of a commercial character,” whether or not the person who carries it out does so in expectation of profit.
The definition of CEM is therefore broad enough that it could reasonably apply to the activities of many non-profit or charitable organizations.
What’s the Prohibition?
CASL prohibits anyone from sending a CEM without express or implied consent. It has strict rules about getting express consent (the best part is that a request for consent to send a CEM is itself a CEM). And it has very specific rules for what counts as “implied consent” (unlike in the privacy context, where implied consent is more of an open and situation-specific concept).
CASL also requires that CEMs contain certain information, and has specific requirements about opt-out mechanisms, procedures and timelines.
What about Registered Charities?
CASL has some specific exceptions for registered charities. First, registered charities can rely on an implied consent exception based on an “existing non-business relationship” if:
- the recipient made donations or gifts to the charity within the two years immediately before the CEM was sent; or
- the recipient performed volunteer work for, or attended a meeting organized by, the charity within the two years immediately before the CEM was sent.
If either of these situations applies, the charity can send CEMs within the two-year window without express consent.
Second, Industry Canada’s regulations (CASL has two sets of regs, one from Industry Canada and one from the CRTC – it’s a long story) say that the general prohibition does not apply to CEMs that are sent by or on behalf of a registered charity and whose primary purpose is to raise funds for that charity. This exception applies regardless of whether there’s any pre-existing relationship, which means a registered charity can send fund-raising CEMs without consent at any time.
What about Non-Profits?
The specific exceptions described above apply only to registered charities, not non-profit organizations generally. And remember that CASL says that an activity can be “commercial” even if it is carried on without expectation of profit.
However, an implied consent exception based on an “existing non-business relationship” with respect to membership in a “club, association or voluntary organization” may apply to some non-profits. The regulations define this as a non-profit organization that is organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than personal profit. To qualify, no part of the organization’s income can be payable to, or available for the personal benefit of, any proprietor, member or shareholder, unless (CASL excels at having exceptions to exceptions) that proprietor, member or shareholder is an organization whose primary purpose is the promotion of amateur athletics in Canada.
The exact scope of this exception remains unclear. “Social welfare, civic improvement, pleasure or recreation or any purpose other than personal profit” is certainly broad, but the additional income wording might exclude some organizations even if they fit within those activities.
What about Co-Ops?
CASL says that cooperatives under the Canada Cooperatives Act, cooperative associations under the Cooperative Credit Associations Act, and any similar organization incorporated under legislation are “businesses” for the purpose of the “existing business relationship” implied consent exceptions. This wording makes clear that co-ops must rely on the “existing business relationship” exceptions, not the “non-business” ones.
What General Exceptions Might Apply?
Charities and non-profits might also be able to rely on one of CASL’s general “existing business relationship” implied consent exceptions, which include:
- the recipient purchased or leased products, goods, services or land from the sender within the two years immediately before the CEM was sent;
- the recipient accepted a business, investment or gaming activity offered by the sender within the two years immediately before the CEM was sent;
- the recipient entered into a written contract with the sender regarding a matter not covered by the other exceptions, if the contract is in existence or expired within the two years immediately before the CEM was sent; and
- the recipient sent an inquiry or application to the sender in respect of anything mentioned in the other exceptions, in the six months immediately before the CEM was sent.
Do You Need to Comply as of July 1, 2014?
There is a transition period for coming into compliance once CASL is in force. If an organization has an existing business or non-business relationship with an individual as of July 1, 2014, and if that existing relationship includes the communication of CEMs, then the organization has implied consent to continue sending CEMs to the individual until the earlier of (1) the individual specifically opting out, or (2) July 1, 2017.
A Final Word on Exceptions and Consent
CASL contains more exceptions, including those relating to family and personal relationships, intra-organization messages, referrals, etc. Determining which exceptions, if any, apply to a particular CEM will be an ongoing issue for all Canadian commercial organizations.
However, CASL always allows CEMs to be sent with express consent, so long as the consent is obtained in accordance with CASL and the CEM has the required content. So both non-profits and charities can avoid the debate and potential confusion around whether an exception applies by obtaining and relying on proper and documented express consent. This is not necessarily simple, and most organizations will have to implement new measures to track their mailing lists, consents, etc. – but once a CASL compliance program is in place, proving and relying on express consent may very well be simpler and less risky than relying on an exception.