The Government of Canada announced on June 7, 2017 that it is "suspending the implementation of certain provisions in Canada’s anti-spam legislation (CASL) in response to broad-based concerns raised by businesses, charities and the not-for-profit sector." These provisions were not yet in force but would have come in on July 1, 2017. They would have allowed an individual who received a commercial electronic message that was in contravention of CASL to sue the organization and its directors, officers and agents that sent the non-compliant email. The statutory damages could be quite large.
These private right of action provisions are now indefinitely suspended. I am supportive of this change.
What are the implications:
1) Keep in mind that most importantly CASL is still in force and applies to charities. Charities need to ensure that they are careful to only send commercial electronic messages (CEMs) to people who they have express or implied consent from. Express and implied consent have specific definitions under CASL. It is best to obtain express consent, which is long term less work in terms of monitoring than implied consents.
2) Make it as easy as possible for people to unsubscribe from your email. I would argue that even if CASL does not apply to a message because it is not a commercial electronic message or an exemption applies, your charity should still have an unsubscribe for bulk emails. You may think it is a good idea to make it hard for people to unsubscribe so that your charity maintains contact with more people but it is short-sighted. Having large mailing lists with only a few people opening the email can result in your organization's emails being filtered by some email services as "junk mail" or spam. Ironically, having fewer people on your email list may get more people to actually open and read your emails. Additionally, making it hard for people to unsubscribe could cause people to dislike your charity and potentially complain about your charity, which could create legal consequences. It also undermines public confidence in charities as a whole, which makes it harder for charities to fundraise.
3) Instead of focusing on retaining people who don't want to be on your list try to make it easier for people to sign up to your list. I still see charities who don't have an easily accessible email sign up system.
4) Charities should have in place vigorous systems to ensure that email addresses used either have explicit consent or the appropriate implied consent (e.g. the person donated to your charity in the last 2 years). There is a very important exception to CASL for CEMs sent by Canadian registered charities "where the message has as its primary purpose raising funds for the charity". This is a very important exception for registered charities but it does not exempt them from CASL completely. This also does not apply to non-profits that are not registered charities or foreign charities. If you have a charity and a non-profit working together - the rules for sending emails are different for each of those entities.
5) One good thing about the removal of the private right of action is that there will be less scary webinars and newsletters on CASL over the next few months.
6) A large part of try to be compliant with CASL is education - for fundraisers, tech personnel etc. You might have an excellent system for obtaining express consent but if a new person at your charity sets up the next email and sends it to people who have unsubscribed or an old list your hard work will come to nothing.
7) Organizations should segment their lists. Yes there are some people who appreciate receiving daily emails from your charity - but if that is how you communicate with your whole list you will have lots of people dropping off very quickly. The larger the organization the more segmentation you should probably have in terms of interest areas and desired frequency.
8) Encourage staff people and volunteers to have a personal address as well as an organizational address to avoid the perception that an email is being sent by the organization when it is sent in a personal capacity.
Here are some previous links we have relating to CASL and non-profits or charities:
Do you require legal advice with respect to Canadian or Ontario non-profits or charities?
Mark Blumberg is a partner at the law firm of Blumberg Segal LLP in Toronto and works almost exclusively in the areas of non-profit and charity law.