02E78769Anti-Spam Law is Now in Force

Charities and non-profit organizations should be aware that key portions of Canada’s anti-spam legislation, came into force beginning July 1, 2014. This includes the “anti-spam” provisions in the Act that deal with commercial electronic messages. Any organizations that have not yet considered the impact of this legislation should do so as soon as possible.

It is important to understand that the legislation is not limited to the for-profit sector. Charities (including churches) and NPOs that send messages that constitute “commercial electronic messages” (CEM) may be subject to the consent requirements in the legislation. Once the legislation is in force, organizations will be prohibited from sending CEMs unless they have received express or implied consent from the recipient, or unless an exemption applies. The potential penalties for violating these requirements are very significant.

Registered charities (but not NPOs) benefit from a broad exemption from the consent requirements for CEMs that are sent with a primary purpose of fundraising. Consent to send CEMs is also implied where the recipient has been a volunteer, donor or member of the organization at any time in the previous two years. However, these exemptions and implied consent may not cover all communications or potential recipients, and it may be necessary to request express consent to send future CEMs.

To the extent that an organization must request consent from recipients, it is important to understand that now that the legislation is in force, it is no longer be possible to request consent via email or other electronic communication. This is because, under CASL, an electronic message requesting consent to send CEMs is itself considered a CEM.

On the Anti-Spam information website, there is mention of a three-year transition period. However, some aspects of this are unclear and may lead to incorrect assumptions about the implication of the regulations.

The effect of the three-year transition period is that if your organization is sending a “commercial electronic message” after July 1, 2014, for which you need consent and which must include the prescribe requirements, any implied consents through a business or non-business relationship you have will be in place throughout that transition period regardless of the limitation periods in the legislation. For example, a donation to a registered charity creates implied consent for a period of two years, but during the transition period that two-year period is extended to three years.

However, after that transition period, all the normal timelines for implied consent under the legislation will apply. In this regard, the final sentence clarifies that during the three-year period organizations that need express consent will have the three years to “convert” their implied consents into express consents. Express consent has no limitation concerning time, but of course a recipient can always withdraw his or her consent at any time.

If you had a validly obtained express consent prior to July 1, 2014, that express consent can continue to be relied upon. However, the onus on the organization sending a commercial electronic message to demonstrate that they had consent. Therefore, where records of this consent are not very good, confirming the express consent is a prudent exercise.

The other issue to be aware of is that an electronic message that asks for the recipient to provide express consent to be sent commercial electronic messages is itself an electronic message. In this regard, after July 1, 2014, if you do not have express consent, and you do not have implied consent, you cannot send an electronic message asking for express consent. If you have implied consent, though, you can send an electronic message asking for express consent.

The slow rollout in getting consent after July 1, 2014, is a viable option, provided you can demonstrate that you have implied consent from those you are requesting the express consent from.

DISCLAIMER 

The Canadian Baptists of Ontario and Quebec are not responsible for the legal advice to local churches through this document. Local churches should seek assistance and advice from their local advisers when specific issues arise. This guide is provided to you as a service; it should be used to increase knowledge within your local church.