June 26, 2014
Canada is one of the last developed nations to enact anti-spam legislation however, effective July 1, 2014, that is no longer going to be the case when the law commonly referred to as Canada’s Anti-Spam Legislation (“CASL”) will come into force.
CASL is intended to promote efficiency in the Canadian economy by regulating all commercial electronic messages (“CEM”) being sent and received in Canada. CASL is widely considered to be the toughest commercial electronic messaging legislation in the world and, once in force, will have significant implications for not-for-profit organizations (“NPOs”) and registered charities. The act captures electronic communication well beyond what would usually be considered a spam e-mail. The definition of CEM casts a wide enough net to capture any means of electronic telecommunication including e-mails, text messages, instant messaging and social media.
CASL broadly prohibits the sending of any CEM that encourages participation in a commercial activity, regardless of any expectation of profit. CASL requires that all CEMs be sent only with the express or implied consent of the recipient and requires that CEMs contain specific content such as an unsubscribe mechanism. The consent and content rules within CASL, if not already convoluted enough, are subject to several exceptions.
Penalties for non-compliance are harsh and range up to $10 million for corporations or $1 million for individuals and include the possibility of personal liability for directors and officers.
The fortunate news for registered charities and NPOs is that CASL contains two provisions which may help facilitate the continued communication with a donor base or membership:
There has been limited guidance from the Canadian Radio-Television Commission (“CRTC”) on the interpretation of CASL as it applies to registered charities and NPOs. The CRTC, however, is expected to issue a guidance statement and provide more information within the next few weeks – stay tuned.
Although at first glance the above exemptions may seem favourable, many CEMs sent by NPOs and registered charities which are not to the current membership or for the primary purpose of raising funds will still need to comply with the consent and content requirements of CASL. NPOs and registered charities should undertake a thorough examination of CEM policies and practices to ensure they are onside with CASL or risk being made an example of by the CRTC.
Tags: Private Company