There has been some debate about whether municipal governments are subject to Canada’s Anti-Spam Legislation (“CASL”) or whether, like the provincial and federal governments, municipal governments are exempt from CASL.
The CRTC , which is the primary enforcement agency for CASL, has published FAQs on its website, which include the following statement:
“CASL does not apply to the activities of the federal, provincial and territorial governments. CASL does apply, however, to crown corporations, including municipal governments, when the corporation is acting in the course of any commercial activity” (emphasis added).
While we are not convinced that municipal governments are “crown corporations”, it is clear that the CRTC considers municipal governments to be potentially subject to CASL, depending on their activities.
Federal and provincial governments are not bound by CASL because of a provision in the federal Interpretation Act which states: “No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment”.
CASL provides that it is binding on any corporation expressly declared by statute to be an agent of Her Majesty, when the corporation is acting as such in the course of any commercial activity. CASL also states many of its requirements as applying to a “person”, and “person” is defined in CASL to include a “corporation”. Incorporated municipalities are considered “corporations” and are generally not considered to be agents of Her Majesty for the purposes of Crown Immunity.
Is That Email a “Commercial Electronic Message”? Municipalities Need to Check
Local governments should be reviewing the electronic messages they send out, in order to determine whether these electronic messages fall within the broad definition of a “commercial electronic message” (“CEM”) under CASL. If one of the purposes of an electronic message is to “encourage participation in a commercial activity”, it is a CEM under CASL. “Commercial activity” does not require an expectation of profit. However, “commercial activity” does not include conduct carried out for the purposes of law enforcement or public safety.
Clearly, many electronic messages sent by local governments will not encourage participation in a commercial activity, and will relate solely to law enforcement, safety, municipal council meetings and other non-commercial matters. Certain CEMs sent by local governments may also fall within an exception in CASL or the associated regulations. Local governments cannot, however, assume that nothing they do falls within CASL. Electronic messages relating to municipal programs, activities or facilities offered for a fee will need to be carefully considered by local governments in relation to CASL.