The Canadian government recently announced that most of Canada's Anti-Spam Legislation (CASL), including the provisions relating to commercial electronic messages (CEMs), will come into force on July 1, 2014. Intended to be one of the most stringent anti-spam regimes in the world, CASL will have a significant impact on the electronic communication practices of charitable organizations and not-for-profit entities (NFP). Members of the NFP sector had hoped that, after making submissions to the government about the significant burden that CASL would impose on the sector, the government would expand CASL's exemptions to cover the sector as a whole. While CASL does include some helpful exemptions, including some that are specifically directed at the NFP sector, there is no blanket exemption for NFPs. That means that NFPs will need to start their planning process as soon as possible to ensure that they are CASL compliant by July 1, 2014.
THE BAN ON SPAM
A CEM is an electronic message, including an email, text message, instant message and a message sent through social-networking sites, which is intended to encourage participation in a commercial activity. Commercial activity includes any transaction, act or conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit. CASL catches a wide range of electronic communications, including electronic messages that offer, advertise or promote any good or service. Generally speaking, CASL prohibits sending a CEM to an electronic address unless the recipient has consented to receiving it and the CEM complies with certain form and content requirements. It should be noted that an electronic message that is sent for the purpose of obtaining express consent to send CEMs in the future is itself a CEM. As a result, subject to certain exemptions and situations in which consent can be implied, after July 1, 2014, organizations will not be permitted to send electronic messages that are intended to obtain express consent. Accordingly, it is recommended that members of the NFP sector start obtaining express consent in the near future.
CASL COMPLIANCE IS NOT REQUIRED IN CERTAIN CIRCUMSTANCES
Since CASL only catches electronic communications that are intended to encourage participation in a transaction, act or conduct or course of conduct that is of a commercial character, the legislation does not apply to all electronic communications. For example, many...