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Canada’s Anti-Spam law – 10 Questions & answers that will get you up to speed

Is your organization ready to be compliant with CASL legislation? If not, these 10 questions and answers will put you up to speed in less than 5 minutes.

(One thing to remember here is that we aren’t lawyers, so this doesn’t constitute legal advice.  If you have concerns about your organization’s compliance, you should consult a lawyer.)

1. What is the intent of this new legislation?

The Canada’s Anti-Spam law (CASL) was passed in December 2010 and was designed to regulate the use of commercial electronic messaging (CEM). All businesses and organizations – including registered charities and nonprofits –  will need to take action to be compliant with the new law.

The CRTC is committed to reducing the harmful effects of spam and protecting Canadians better by ensuring that they are working in a more secure online marketplace.

2. When will the new law come into force?

The new anti-spam legislation will take effect on July 1, 2014.

3. What is a commercial electronic message?

According to the Government of Canada’s website, the definition of “commercial electronic message” includes any message sent by telecommunications (including e-mail, text messages, voicemail, social media communications, etc.) if the purpose of that message is to encourage participation in a commercial activity.

Some examples of CEMs include:

  • offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
  • offers to provide a business, investment or gaming opportunity;
  • promoting a person, including the public image of a person, as being a person who does anything referred to above, or who intends to do so.

4. What does this mean for charities?

Ultimately, it means that express, “opt-in” consent will be required to send any message that can be construed as a commercial electronic message..  The law comes into effect on July 1, however express, “opt-in” consent is not required for everyone until July 1, 2017 – and “implied” consent will be sufficient until that time.   Your own donors or volunteers (or members if you are a non-profit organization) from the past two years are considered to have given their implied consent because of the transactional relationship you have with them.  (This of course does not include those who have asked to be “unsubscribe” – And remember you must respond to unsubscribe requests within 10 days.).

5. But aren’t charitable organizations exempt from CASL ?

Charities are not exempt– CASL compliance depends on the content of what they are sending electronically.  Emails sent by charities that are purely informational and do not have a commercial purpose as stated under the law are exempt .  Emails sent by charities that have raising funds for the charity as their “primary purpose” will also be exempt from the regulations.(fightspam.gc.ca).Emails that promote sponsored events, ticket sales, or lotteries could be seen as having a commercial/transactional purpose – so it’s best to seek the guidance of legal counsel.

Non-profits that are not charitable will likely need to proceed  cautiously and exercise more due diligence (e.g. obtain consent in the manner of a for-profit business) with regard to sending with electronic communications to their members and supporters.

While Industry Canada who created the legislation has provided the interpretation that many of the activities of charities and non-profits would be exempt, the CRTC is the enforcing body and may be more stringent.  Just before this blog went live, Imagine Canada was contacted by the CRTC to remove information that reflected Industry Canada’s interpretation– and stated that they will be coming out with their own FAQ for charities and non-profits in the coming weeks (unfortunately after the July 1 deadline).

6. How do you obtain express consent?

By July 1, 2017, consent must be obtained explicitly and must be via an “opt-in” option not an “opt-out” option. Pre-checked “opt-in” boxes are NOT sufficient. Getting express consent can be written (paper, electronic forms of writing, webpage check box) or oral (if it can be verified by a 3rd party or if an unedited audio recording exists).

7. Under what circumstances will a CEM be in violation of the new law?

The law will be violated when a commercial electronic message is sent and any one of these three requirements are not fulfilled:

  • Recipient consent has been obtained  (And again, this consent must be explicit by 2017 )
  • Sender identification (name and mailing address and phone or email must be included)
  • Message unsubscribe mechanism included

8. What information must be included in all CEMs?

All organizations including Registered Charities must identify the sender of the message and include complete contact information (name, mailing address and phone number or email address).
In addition, a simple method for individuals to unsubscribe must be included in all CEMs so that recipients can unsubscribe at any time and without difficulty – and your organization must complete the request within 10 days.

9. What about penalties?

There will be no punitive actions taken until July 1, 2017, when there will be a process established that allows individuals to launch complaints against anyone they believe is not complying with the regulations.  The potential penalties for non-compliance are significant: the ¬maximum penalty is $1 million dollars per violation for an individual and $10 million per violation for entities (such as corporations).  However there is as yet no experience with what the actual practice will be. Past experience with the CRTC and other regulatory bodies suggests that penalties are often considerably less than the maximums under the law, particularly where organizations are seen to be acting in good faith.

10. What can our organization do today to be ready for CASL?

Make sure that you reach out to your donors and supporters to let them know what you’re doing and that you are taking actions to be CASL compliant.  Show that you are proactive by sending an email with an opt-in request to your supporters (especially to those that are lapsed or about to lapse) before July 1, 2014.  Add opt-ins wherever you have contact with your donors, members, volunteers – including mail forms and any other sign-up forms.  And make sure you track how and when they gave explicit consent (which you only have to get once and lasts forever unless the person unsubscribes!)  – then you’re in good  shape going forward.

Stay tuned for further updates!  We anticipate more updates from the CRTC in coming weeks.


Last Updated: June 26, 2014
Sources:
fightspam.gc.ca
www.theonn.ca
www.crtc.gc.ca
 

 

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