By Alexandra Tzannidakis, LL.B.
CASL is a spam-fighting Act that, among other things, regulates what kind of electronic messages people and organizations can send and under what circumstances. It applies to sending e-mails, text messages, social media, and other forms of electronic message, but not to faxes or phone calls.
Ever since it came into effect in 2014, we have heard from many charities that are anxious to know how exactly the law applies to them. The law itself is relatively complicated and full of nuances and exceptions, as laws frequently are, so it is not surprising that charities are concerned. In particular, CASL has a set of exceptions specifically for registered charities that essentially forms an entirely distinct scheme for them within the wider law. The good news is that this scheme actually exempts registered charities from many of the law’s restrictions, so long as the charity navigates it correctly.
Please note that this information is specifically for registered charities, i.e. organizations and foundations that are registered with the CRA as a charity under the Income Tax Act and therefore have a charitable registration number and the ability to issue charitable donation receipts. Unless otherwise specified, it does not necessarily apply to unregistered charities or to non-profit organizations in general.
What are Charities Allowed to Do?
Registered charities may send electronic messages without worrying about any of the restrictions that CASL places on them if the message’s primary purpose is raising funds for the charity. This includes electronic messages that are sent on behalf of registered charities.
A message’s “primary purpose” is fundraising when that is the main reason for the message being sent. It is all right if there is some additional purpose or reason to the message, as long as it is clearly not the main one. So, for example, an e-mail promoting or selling tickets to a fundraising event like a gala or tournament is primarily about fundraising. So is an electronic newsletter that is generally about the charity’s activities but also includes a section that solicits donations for the charity. It is also acceptable to mention corporate sponsors in such a message as long as the recipient is not explicitly encouraged to participate in commercial activities with those sponsors.
CASL only applies to electronic messages that are “commercial” in nature (fundraising messages are technically commercial, but they are an exempt exception for charities as described above.) Commercial messages are those that relate to doing business, such as offers to buy or sell, to provide business or investment opportunities, and any advertising or promoting of such things or of people who do or intend to do such things.
There are no restrictions in CASL on sending electronic messages that are non-commercial. This includes messages that are just about the charity’s activities or about issues that concern the charity.
Other General Exemptions
Some other types of messages that are completely exempt from CASL’s electronic message restrictions include those that are:
Sent internally within the organization and concern the organization’s activities,
- Sent between organizations with an existing relationship and concern the recipient organization’s activities,
- Asked for by the recipient, for example a response to a request, inquiry, or complaint,
- Sent for legal reasons, for example a product recall or to enforce a legal right,
- Reasonably believed by the sender to be received by someone in a foreign country.
These are the exemptions most likely to apply to a charity, but there are a few others, so check with an expert if you are unsure.
What are Charities Restricted from Doing?
If none of the above exemptions apply to the kind of electronic message you want to send, then you will need to make sure that the message meets CASL’s requirements.
The basic requirements of a non-exempt commercial electronic message are:
The sender has to have consented to receiving the message. The consent can be express or implicit.
Express consent is consent that is actively given, such as by having it in writing or by having actively clicked a toggle box (no pre-checked boxes!). Express consent lasts until it is withdrawn by the recipient.
Implicit consent is a little more complicated and may come about in a few ways:
- Non-business relationship (charities). If the sender is a registered charity, and the recipient has given a gift or donation or done volunteer work, then the recipient is considered to have given implicit consent for a period of 2 years from the start of the relationship
- Non-business relationship (charities and other non-profits). If the sender is a club, association or voluntary organization (including registered charities) and the recipient is a member, the recipient is considered to have given implicit consent upon becoming a member and for a period of 2 years after membership ends
- Disclosure by recipient. The recipient has conspicuously published, or told the sender about, the electronic address to which the commercial message is sent, without mentioning they do not want to receive unsolicited commercial messages, and provided that the message is relevant to the recipient’s business, role, functions, or duties in a business or official capacity.
- Phase-in Period. Any business or non-business relationship that included commercial messages and which existed from before July 1st, 2014, constitutes implicit consent until July 1st, 2017 (unless specifically withdrawn by the recipient). This is the “phase-in period” that was built into CASL when it was introduced.
The commercial electronic message must include the identity and contact information of the sender, including a physical mail address, business name, name of anyone else on whose behalf the message is being sent, and one of either a phone, e-mail, or web address. You can simply include a link in the message that leads to this information, as long as it is clear and promine
- Unsubscribe Mechanism
The commercial electronic message must include an unsubscribe mechanism that is readily usable. This is generally something like a link that says “unsubscribe by clicking here”.
In a Nutshell
Several exceptions apply to charities that make it so they do not need to comply with CASL when sending out electronic messages. This includes messages that are primarily about fundraising.
If none of the exceptions apply, charities can still send electronic messages as long as they comply with the three basic requirements of CASL: consent, identification, and an unsubscribe mechanism.
If you are unsure about how these rules apply to your organization, or wish to undertake a general review of your operations to make sure your organization is in compliance with CASL, you may want to seek professional advice. Drache Aptowitzer LLP is experienced in helping charities and non-profits navigate CASL.