Updates concerning CASL
In the June 2014 e-Bulletin, we published a COCo Note on CASL: Canada’s Anti-Spam Legislation.
Since then, several community groups contacted us to know more about how this may apply to them. You’ve probably noticed many groups have been sending out mass mailings asking subscribers to consent to receiving their newsletters. We’ve also seen blogs, commentators and subscribers reacting to this, some by complain about the amount of such emails being sent out by a large amount of non-profits, or that these are unnecessary. This article was shared with us on Facebook and raises a few issues around this transition period. Let’s address two of those issues.
First, it’s true that if you’ve got subscribers who provided you with their explicit consent (filled a form, provided you with their email to be subscribed, you asked them, etc.) to contact them with electronic messages, there’s no obligation on your part to ask for explicit consent again. However, some groups may not have been keeping track of how consent was obtained, or were afraid it hadn’t been obtained properly, and may have wanted to practice due diligence and ask for consent of all their subscribers. There is nothing inherently problematic in this approach. However, if you go along with this tactic, you should indeed expect a reduction in your subscription numbers. Also, there’s no particular reason for you to do this right away for all your subscribers, as you have a 3-year period (for now: eventually, 2-years) to obtain explicit consent from individuals who provided you with implicit consent. As many groups are sending these emails out in the summer, you may want to wait until the fall not to overload your subscribers, and perhaps have a better chance of catching their attention. Also, you probably want to send this not only to your subscribers, but to just about anyone your organization is in contact with and therefore has provided you with implicit consent to reach out to them. This will give you an occasion to grow your subscriber list by obtaining explicit consent from people you hadn’t obtained it from previously.
Second, if this legislation does require you to obtain explicit consent from subscribers to send them CEM: Commercial Electronic Messages, many have observed that for a lot of non-profits, the newsletters they send out don’t actually qualify as CEMs. If you’re only promoting free activities, sharing information, and aren’t supporting political candidates, then your newsletters may not be CEMs. If the only paid activities you promote are fundraising events with an email dedicated to them, and that you’re a registered charity, again this legislation may indeed not apply to your organization. However, the compliance requirements in CASL are fairly reasonable guidelines to follow (explicit consent, unsubscribe links, clear identification of sender, etc.), and you may want to comply to adopt “best practices”, or to maintain the opportunity of sending out different messages, which may qualify as CEMs, at a later date as your organizational needs grow and change.
On another note, since the bill has come out, several additional details, guidelines and FAQs were released by Industry Canada to reflect the particular nature of the Non-profit sector.
Consult the updates on the FAQs on the Imagine Canada website:
New FAQs added by CRTC: http://www.canadiancharitylaw.ca/blog/crtc_adds_to_faqs_for_casl_and_canadian_registered_charities
FAQ/guide for registered charities: http://www.imaginecanada.ca/node/2799
FAQ/guide for non-profits at large: http://www.imaginecanada.ca/node/2800