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The context: Canada’s Anti-Spam legislation

In 2010, Canada’s Federal Government passed a law (Canada’s Anti-Spam Legislation or CASL) which aims to fight spam and which comes into force on July 1st 2014. This law likely affects your communications activities as a non-profit. That said, if you were already following best practices, you are probably doing fine. However, because there’s a lot of uncertainty around CASL, and the guidelines the government promised for non-profits haven’t been issued, the preparations for this legislation are mostly rules of thumb. Whoever handles communications and outreach should be familiar with it.

Commercial Electronic Messages vs. Spam Emails

Although the law aims to fight spam, what its regulations apply to is a new technical concept of Commercial Electronic Messages. Spam has been traditionally understood to be unsolicited email sent by bulk. Though you may not currently be spamming, and think you’re not at fault in any way, if your communications count as Commercial Electronic Messages (CEMs), you may still have to follow certain provisions. Ironically enough, and despite campaigns by non-profit networks requesting it, there is no blanket exemption for non-profits: CASL may recognize some of your emails as CEMs even if your organization does not aim at generating a profit.

So what counts as a CEM? It’s the sending of a digital message (email, social media, etc) from your organization to an individual for solicitation of almost any kind. Unless the services your organization offers are completely free of any fee, hidden or explicit, they will be considered commercial by this legislation. And if your organization is promoting said services through electronic messages, or promoting the people or programs offering these services, then those are CEMs. Simply including a link to an online content that effectively does solicitation or promotion of this kind would qualify your message as a CEM as well.

What should we do with our email newsletters now?

For all your CEMs, there are three basic recommendations you have to follow.

First, you must have obtained explicit (preferably) or implicit (more problematic) consent to contact the person.
Second, you must identify your organization clearly and simply as the sender of the message with your contact information, as well as for any other organization or person on whose behalf you are sending a message.
Third, there must be an unsubscribe mechanism in place in the message itself (the case for email) or in the platform used to send the message (the case for Facebook and Twitter).

You can gain explicit consent by asking people if they would like to receive your electronic communications. They can give this consent by providing you with their email for this explicit purpose, for example. Online forms linked to some kind of CRM (Constituent Relationship Management system) or specialized mass-mailing system are a good way to go to avoid tracking large amounts of consent forms. This is called a single opt-in, and is sufficient for CASL. Many services employ a double opt-in, where a confirmation email is sent for the person to confirm their consent, and is considered a better practice.

Implicit consent to receive emails from your organization could be provided by people using your services, but expires after a period of two years. You may want to use implicit consent to contact individuals in order to obtain explicit consent from them, as the latter only expires if the person opts-out with an unsubscribe mechanism.

Identifying your organization clearly can mean using an organizational email or account to send your communications, and including your logo, website, phone number, and other contact information in the signature.

Facebook and Twitter allow users to stop following your page or account, and therefore effectively unsubscribing. This is usually called an opt-out mechanism. For email however, you must include an unsubscribe mechanism or link in every CEM you send. The simplest way to do this is to use some specialized mass-mailing services, some of which may be free or cheap for small amounts of communications, and include this function automatically.

Exceptions to the Spam Legislation

Luckily enough, there are a few exceptions to what can be considered a CEM to make email communications manageable. As we already mentioned, all your free activities and services are non-problematic. For other activities, you can always do follow-up emails, including transactional emails (invoices, receipts, etc.), with someone who has expressed interest in your services or is part of your programs, or has been referred to you by another organization or contact.

Contacting your official members is non-problematic. So is contacting your staff and board, as well as current or recent (2-year) volunteers, for operational and day-to-day communications. Community partners who are also official members of a same network organization as you are can be contacted within that context.

For registered charities, you can contact previous donors to solicit further donations. However, you may want to ensure they transition from implicit consent (by donating) to explicit consent (by telling you that you can contact them by email) to avoid expiration of this consent. Also, official, dedicated fundraising activities are not considered commercial, but activities that simultaneously serve another purpose do not get exempted.

You can always contact your network to provide information relating to security and safety purposes relating to your activities and services. Some exceptions also exist for research and survey purposes.

Conclusions about Canada’s Anti Spam Legislation for Non Profits

If you’re using a well-developed, professional mass-mailing service for your bulk email outreach and communications, you should be fine. You should however look at how you’re collecting email information, the types of consent, and how you’re tracking that information, as well as looking closely at the types of communications you’re sending out.

If you have any questions, please contact : commun-it@coco-net.org