Note: Please see the bottom of this page for an important update.
As many of you may be aware, Canada’s Anti-Spam Legislation (CASL) came into effect on July 1, 2014. Your email inbox has probably already been flooded with a number of requests from various organizations and businesses seeking express consent to continue receiving their email communications. The potential fines under CASL are hefty: up to 1 million dollars per CASL violation for an individual and up to 10 million dollars per violation for a company or organization. Is everyone paying attention now?
Leadnow is committed to complying with this new legislation and we would like to share our plan with you. However, as you might expect from Canada’s leading online advocacy organization, we also have our own opinions about this new law and we feel that it is just as important to share our thoughts about CASL. To check out the legislation, please see: http://laws-lois.justice.gc.ca/eng/acts/E-1.6/index.html
Why does Canada have CASL? Who does it apply to?
Canada is the last of the G8 countries to introduce anti-spam legislation. Who likes spam anyway? No one that we know of! (Well, except these vikings.) Spam can fill up your inbox rather quickly and become time-consuming as you sort through legitimate email and delete frivolous and sometimes even harmful spam. We know: unlike many organizations, at Leadnow if you reply to an email we send out, it goes to a real inbox, and a real person reads it. We respond to hundreds of important emails that you send us each week, while also filtering out a lot of spam messages.
Canada’s Anti-Spam Legislation is supposed to be part of the answer to the spam problem. And yet, despite possible best intentions, we believe that this legislation is fraught with ambiguity and uncertainty, especially for non-profits like us that do not have charitable status. Let us explain why.
CASL is supposed to target business and organizations that send commercial electronic messages or CEMs (please see the Canadian Radio-television and Telecommunications Commission (CRTC)’s FAQ for a definition of CEMs). On first glance, it would appear that messages sent by most non-profits would not be considered commercial electronic messages, however only non-profits with charitable status are explicitly mentioned in the legislation as being exempt from most of the requirements of CASL. The rest of us have been scrambling to receive legal advice on whether our email communications might be considered commercial electronic messages – and so far it seems that this advice varies from lawyer to lawyer. Also notably, the new legislation exempts political parties from the definition of commercial electronic messages. Hmmmm, does anyone else find this to be problematic?
The Ontario Nonprofit Network made a submission to Industry Canada in February 2013, asking for Industry Canada to take into account special considerations for charities and non-profits. At that time, charities were also going to have to come into compliance with CASL. Specifically, they asked that:
The Ontario Nonprofit Network submits that Industry Canada should exempt from the
consent and content requirements, electronic communications sent by, or on behalf of,
registered charities and registered nonprofit organizations.
The 13-page submission (pdf) outlined some of the challenges that small to mid-size nonprofits will face in becoming CASL compliant, and some of the definitional issues within the CASL legislation, as well as the important distinction that nonprofits are not commercial in nature but community focused. Sadly, the only exemption that was applied after this submission was for registered charities.
I’ve heard CASL has a bunch of complicated compliance timelines. How do they work?
To further complicate matters under the new legislation there are a number of different timelines that relate to consent. In order to receive CEMs, everyone needs to give express consent by July 1, 2017. People who have been receiving communications from an organization before July 1, 2014 may be assumed to have given implied consent which will expire in July, 2017 so organizations will need to obtain express consent before then. After July 1, 2014 all new supporters/contacts of an organization will need to give express consent. Or, if for example someone made an inquiry about your organization after July 1, 2014 then you have six-months to obtain express consent. OR if a new contact has given what you think is implied consent after July 1, 2014 then you have two years to obtain express consent. If the different definitions of consent and associated timelines are confusing to you, imagine how confusing they might be to manage with different email lists in one database!
It’s worth noting that the majority of the organizations who stopped asked for new consent and then stopped emailing the rest of their existing lists after July 1st, 2014, did not need to take such drastic action, even if they do in fact send CEMs. They could have continued to rely on this implied consent for their existing lists for 3 more years. Essentially, many non-profits burned their lists to the ground and decided to start from scratch, a tragic weakening of Canada’s non-profits’ ability to engage Canadians in their vital work.
What’s Leadnow.ca doing about CASL?
Thankfully for Leadnow.ca, we have more high-tech capacity than many non-profits to manage our databases and lists due to the support of people like you who believe in the political advocacy work we do promoting a stronger democracy, climate justice and a fair economy. Thanks to you, and especially to our monthly donors who provide our core funding, we can continue our work and be in compliance with the Canada Anti-Spam Legislation. It is important to note that our email communications will likely not be considered commercial electronic messages, since we’re not selling or promoting products with our emails, but rather are asking people to engage in issue-based campaigns and/or donate to support our work as a registered non-profit. CASL only applies to CEMs, so if you’re not sending CEM’s, you don’t need to worry about it.
Our lawyers have informed us that it is extremely likely that e-mails asking for people to sign a political petition will not be caught by the definition of “commercial electronic message” and will therefore be exempt from the prohibitions contained in CASL. Political petitions are not “commercial activities,” they are political activities, and as such, sending a message asking someone to participate is not a message “soliciting participation in a commercial activity.”
However, while we believe we’re right, [and the update below reinforces this belief] we won’t know for sure 100% what is and isn’t a CEM until the new laws are tested in court. We need to be careful not to risk hefty fines at such a critical time both in terms of our limited resources as a non-profit, but more importantly, in terms of the democratic advocacy work we are currently focused on as the 2015 federal election moves closer.
(It’s also worth noting that CASL is complaint-based, and we expect that highly effective independent campaigning organizations like Leadnow are more likely to be targeted by a government that has already shown itself willing to bully and harass charities in order to suppress legitimate dissent and advocacy that is entirely legal and permitted under Canada’s charitable laws.)
At Leadnow, we feel that the new legislation is an undue and unreasonable burden on non-profits who are primarily focused on community building, not on commerce. While this might be a fight we would like to take on politically, we feel that the best path here is to continue our advocacy work for a better Canada on the many important and diverse issues we’re already working on, and to come into compliance under CASL,
based on the cautious approach that Leadnow’s advocacy emails might be found to be CEMs if challenged in court. [Please see the update below, which has relaxed our position on this somewhat.]
We are confident that we do have implied consent from our supporters and contacts prior to July 1, 2014 and we will be asking for your express consent before July 1, 2017. We will be actively seeking express consent from new supporters after July 1, 2014. At all times, you can unsubscribe from Leadnow.ca’s email communications. We will always have an unsubscribe link in all of our email communications, and we will never send spam, sell your email address, or share any of your information without your permission.
Thank you for reading about our perspective on CASL, and thanks so much for your support for our young, effective online advocacy organization! We appreciate all that you do to make our country a better place. Please keep this in mind for all the other small non-profits who are striving to build stronger communities and give them your express consent to follow up with you when they ask. If you have any questions or concerns, please don’t hesitate to contact us at email@example.com
Important Update On CASL and Not-for-Profits
Great news everyone! The Government of Canada has updated their fightspam.gc.ca website on June 30th to include this important update for not-for-profits and CASL:
“CASL does not apply to non-commercial activity. Insofar as not-for-profit organizations do not engage in commercial activity, CASL won’t apply. This means that messages sent by not-for-profit organizations that strictly seek a donation, ask for volunteers or invite neighbours to a free community event are not covered under the scope of the Act.
CASL will apply to not-for-profit organizations sending commercial electronic messages, which are essentially messages that advertise, market or promote a product, good or service or messages that solicit participation in a commercial activity.”
We wish that had been posted earlier, as thousands of dollars and likely weeks of work could have been saved by Canada’s non-profit sector seeking legal advice and adjusting their systems. Better late than never.
Leadnow.ca remains committed to assuming compliance with this new legislation; however, in light of this new information, we are even more confident that our electronic communications are not considered commercial electronic messages (CEM) according to the FAQ from the Government of Canada website, and therefore are exempt from Canada’s Anti-Spam Legislation. You can read the full FAQ here.
The CRTC has also updated their FAQ page with examples of what is considered a CEM and what is not.
Leadnow has also obtained a legal memorandum prepared with the specifics of our organization that clearly outlines that our e-communications should not be considered CEMs by the CRTC. We will ensure that any potential future CEMs will only be sent within compliance of Canada’s Anti-Spam Legislation.
The main difference this update has made for us is to slightly relax our approach. Our plan remains to still obtain express consent to send CEM’s from Leadnow supporters gradually, over time, since there is still uncertainty about exactly what might be found to be a CEM if tested in court. We still want to be cautious, and we believe that certain types of fundraising emails, or a campaign with a commercial element where – for example – if we were to organize consumers to shift to a more environmentally responsible electricity supplier to help increase demand for clean energy and reduce greenhouse gas emissions, might be found to be CEMs.
While this update hasn’t changed our approach much, it is a massively important clarification for small non profits and community groups that lack our technical infrastructure to carefully manage different forms of consent over different timelines. Most of those groups who emailed you saying you’d never hear from them again after July 1st may well have unnecessarily diminished their ability to organize and campaign. They can – in fact – keep emailing their supporters, even those who didn’t respond, as long as they’re careful to read the clarification, and not send anything that could be considered a CEM. They may well still not know this. Please spread the word.
Please note: This blog post is provided for information only, since many people have been asking us about CASL, and we felt it would be a useful public service to share our approach and what we have learned. While we have received advice from lawyers that has helped to inform our opinions, the authors of this blog post are not lawyers, and this is not legal advice. If in doubt, especially given the massive potential fines under CASL, please consult your own lawyer.