On December 4, Federal Minister of Industry James Moore announced that Bill C-28, Canada’s Anti-Spam Legislation (CASL) will come into effect on July 1, 2014. Although Canada’s new anti-spam law comes into effect six months from now, it will face a mandatory review in three years.
The legislation is intended to deter spam and electronic threats. Many everyday activities such as sending an email message to a member, operating an organization’s website, and making a mobile application available for download will soon be subject to new, detailed rules that will likely require you to make significant changes to your operational practices or face tough fines and penalties. Although there are exceptions for charities, many of the requirements are still mandatory.
Organizations will have to adjust to the new law, but most already maintain databases of opt-out consents and provide their members with information on how they can unsubscribe from further marketing materials. The new law establishes some additional form requirements and shifts toward opt-in consents, but the fundamental need to actively manage personal information remains unchanged.
The most significant, and potentially challenging, aspect of CASL is the consent requirement. In essence, all organizations will be required to obtain positive – opt-in – recipient consent to be able to send “commercial electronic messages” (CEMs) to their customers, donors, members and others, unless they have a relationship with the contact that is exempt from the law or can establish implied consent under one of CASL’s specifically defined categories. Due to the difficulties in managing email contact lists to fit within these exceptions, many nonprofits will likely choose to obtain express consent from their donors, past members and other contacts, to ensure compliance.
What the law means for charities and nonprofits:
The full implications are not yet fully known. However, an exemption for messages sent by registered charities that raise funds as their primary purpose was added making the law less cumbersome. According to the government release, “Canadian charities, which operate based on the generosity of Canadians, will be able to continue fundraising as before.” Charities will still need to distinguish between commercial messages used to raise funds and those including the promotion of commercial activities that are not considered to be fundraising activities.
All commercial electronic messages sent by nonprofits that are not registered as charities (including those intended to raise funds) will still fall under CASL.
For messages not exempt from regulation, organizations are required to:
- Obtain consent from recipients before sending commercial electronic messages.
1.1. Consent will be “implied” in the case of “members, donors or volunteers that have been active in the two years immediately prior to the date the message is sent.”
1.2. Consent is also implied if the recipient’s electronic address is conspicuously published or is disclosed to the sender and is not accompanied by a statement indicating they do not wish to receive commercial electronic messages. Additionally, the message must be relevant to the recipient’s business, role, functions or duties.
2. Include the sender’s identifying information “and provide information to enable recipient to contact the sender.”
3. Enable the recipient to withdraw consent (unsubscribe option).
- Those sent to individuals where there is an existing personal or family relationship.
- Those sent between employees, representatives, and consultants of organizations that have a relationship and the message concerns the activities of the recipient organization.
- Those sent in response to a request, inquiry or complaint or that are otherwise solicited by the person to whom the message is sent.
- The first commercial electronic message sent to a recipient that has been referred to the sender by someone who has an existing business, non-business, family, or personal relationship, provided the name of the referring individual is included in the message.
A full listing can be found under “Excluded Commercial Electronic Messages” in the regulations document.
More information can be found at:
Kassie Burkholder, Volunteer Alberta