Anti-Spam Legislation

Commercial electronic messages (CEMS) can still be sent to individuals who have given express consent.

Anti-Spam Law and Non-Profit Organizations

If your organization uses email as part of its promotions, and you do business in Canada, you need to be aware of Canadian Anti-Spam Law (CASL). All organizations are encouraged to visit the key regulatory sites for complete information on the impact of this legislation, and get legal counsel on areas in question.

For more information, consult the downloads and government pages linked at the end of this page. The following is an overview of some of the key ideas, as compiled by information from Imagine Canada and several other sources. It is only meant as a starting point.

1. Does your organization send “commercial electronic messages” (CEMs)?

A commercial electronic message is an electronic message that contains content, or hyperlinks to content on a web site or other database, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity. This includes:

• Offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
• Offers to provide a business, investment or gaming opportunity;
• Advertises or promotes a person or any product, interests, goods or services.

Commercial electronic messages are not:

• Surveys, polling, newsletters and messages soliciting charitable donations, political contributions, or other political activities that do not encourage participation in a commercial activity;
• Pre-existing commercial relationships or activities which provides additional information, or clarification, or completes the transaction involving a commercial activity already underway;
• Personal emails from one person to another;
• Messages sent from your business to another business about business matters – non-commercial.

2. If yes, does your organization have “implied or express consent” to send to recipients?

Commercial electronic messages (CEMS) can still be sent to individuals who have given express consent. Express consent is when an individual gives you permission to send them a type of message. It is usually obtained by:

• Signing up on a web site to receive electronic messages/newsletters;
• Checking a box on a membership application;
• Providing an email address, if it is clear you intend to send CEMs; and
• Oral or written requests to receive messages.

Express consent must be clearly identified and require an action (check a box). Once obtained, this consent only expires if the individual withdraws it.

Implied consent is more transactional. This consent is usually given as a result of a relationship your organization has with another organization or individual. It might be based on a transaction done with a donor, a past volunteer, a past member, a contract, a purchase made in the last two years, or even a past inquiry over the last six months.

It is important to note that since July 2017, only express consent will be allowed.

3. Should your organization obtain consent from all of your contact lists?

It is important to note that a message asking for consent is itself a CEM. If you send such a commercial electronic message (CEM) and do not receive a response, you may no longer send CEMS to that email address, as of July 1, 2014.

First, identify the contacts that will receive CEMs. In most cases, you will find that your email lists are made up of members, or newsletter subscribers that have agreed to be part of your network. However, past consent may not keep you in compliance. Take the opportunity to re-affirm consent through your member renewal process.

If you use a third-party to send your CEMS, ensure they are CASL-compliant. This demonstrates due diligence on your part.

4. What are the penalties for sending unsolicited CEMs?

The CRTC does have the authority to impose large fines. Since 2017, there is a possibility of class-action lawsuits with significant damages.

a.) When in doubt, get legal advice.

b.) Take steps to show due diligence:

• track how you obtain email addresses;
• always include an unsubscribe option; and
• clearly identify your organization.

According to Imagine Canada, organizations that can show they are acting in good faith, taking reasonable steps to comply and exercising due diligence are unlikely to face serious consequences if an error occurs.