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Storming the CASL: Are you ready for Canada's Anti-Spam Legislation?

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Is your organization ready to move into the Canadian Anti-Spam Legislation (CASL) age?

As most nonprofits are likely aware, one of the strictest anti-spam legislative environments in the world is set to come into force on July 1 of this year. The new laws will fundamentally change the way businesses and organizations across both the for-profit and nonprofit sectors can do outreach, marketing and fundraising with both current and prospective clients via all manner of what the government terms Commercial Electronic Messaging (CEMs).

What’s a CEM? It’s construed to be any form of digital contact from your organization to an individual for the purpose of solicitation of almost any kind. We’re talking email, Facebook messages, tweets, BBMs and whatever other form one uses to reach out and conduct business over the Internet. The CASL is both deep and wide, so to speak.

Getting past the CASL’s drawbridge

A complete explanation of CASL and its legal minutiae is better left to experts in the field, namely charity lawyers (we’ll get to them a little further down). But for now it’s instructive to note that CASL is being enforced via an inter-departmental, governmental troika, namely the Canada Revenue Agency (CRA), Industry Canada and the Canadian Radio-television Telecommunications Commission (CRTC).

One of the more easily digestible websites on CASL is hosted by the CRTC. According to this webpage, the CRTC’s mission is to reduce “the harmful effects of spam and related threats to electronic commerce and is working towards a safer and more secure online marketplace.”

Of import on this website is the easy-to-understand, charted breakdown of what must be done to remain in compliance with CASL for CEMs.

Briefly, there are three overarching rules:

  1. One must obtain “expressed or implied consent to send a message.”
  2. One must “clearly and simply identify yourselves and anyone else on whose behalf the message is sent.”
  3. Every message you sent must “provide a way for recipients to unsubscribe from receiving messages in the future.”

Everybody got that?

An important caveat to note is that as of July 1, even though the new law becomes enforceable immediately, there will be a 36-month transition period for implied consent to send CEMs. Here’s how the government explains it:

“Under section 66, consent to send commercial electronic messages (CEMs) is implied for a period of 36 months beginning July 1, 2014, where there is an existing business or non-business relationship that includes the communication of CEMs.

“Note however, that this three-year period of implied consent will end if the recipient indicates that they no longer consent to receiving CEMs. During the transitional period, the definitions of existing business and non-business relationships are not subject to the limitation periods that would otherwise be applicable under section 10 of CASL. Businesses and people may take advantage of this transitional period to seek express consent for the continued sending of CEMs.

“In contrast, express consent does not expire after a certain period of time has passed. If you obtain valid express consent before July 1, 2014, then that express consent remains valid after the legislation comes into force. It does not expire, until the recipient withdraws their consent.”

So what’s the best way to prepare?

In Ottawa, Bill Schaper, Imagine Canada’s director of public policy and community engagement, said CASL’s impact will differ by charity depending on what kinds of messaging each uses and how.

“Organizations need to look where their [contact] lists are coming from, what sorts of messages they’re sending and how they’re keeping their lists updated,” he said.

Charities do have an exemption under CASL for a specific fundraising activity. If the only messages being sent out by a charity are strictly seeking donations, and they can be documented as such, then there won’t be much of an issue, Schaper noted. However, there is a grey area when it comes to messaging about activities that aren’t necessarily direct fundraising, but do bring funds into an organization.

The legislation never makes any reference to the CRA’s fundraising definition for charities, which offers a wider interpretation.

Imagine is “trying to get clarification and guidance from Industry Canada and the CRTC as to what that [interpretation for CASL purposes] might be for an organization, for example, that in delivering its charitable programs has a cost-recovery component in them,” Schaper said. “Whether it’s for materials or whatnot. Or what if there’s a cost component to actually delivering on its mission.”

The government had said it would publish more pointed guidelines for the charitable sector about CASL, but to date none have been made public.

Navigating the CASL maze, lawyer style

Charity lawyer Mark Blumberg, partner at Blumberg Segal LLP in Toronto, told CharityVillage that he’s not surprised the new, “incredibly complicated” legislation is sending many nonprofit executives and their legal departments into a tizzy.

He said the legislation is unfortunately being put into sweeping force in the country “despite any evidence that Canadian registered charities are big purveyors of spam.”

Asked if there was any chance the legislation could still be challenged by the charitable sector, Blumberg replied: “While it would be nice for there to be a complete exemption for registered charities, it appears clear at the moment that the federal government is not going to exempt either charities and or nonprofits from CASL.”

Schaper said Imagine had advocated strongly for such a blanket exemption from government in its role during the consultation period for the legislation, but to no avail. And he too believes no one is going to “open up” this legislation again, unless it proves completely unwieldy for a majority of charities who eventually band together to lobby parliamentarians to take another look and maybe re-draft the law. But that scenario is in the distant future.

On the other hand, Blumberg said, charities and nonprofits could take a silver lining philosophy from the seeming stringency of the law.

“One of the most important attributes that the charity sector has, and also an individual charity has, is public trust. There is nothing like spamming people to destroy that trust and create animosity towards your charity and the sector,” Blumberg said. “Email is a wonderful tool for charities but if it is not used carefully it can become increasingly ineffective. Some charities need to take a more segmented approach to the use of emails. Even small charities should consider providing options and segmenting emails. Some supporters of the charity may not mind receiving daily emails but others find that to be overwhelming and may prefer monthly or quarterly updates. Making an effort to send emails that relate to the interests of the recipients and also align with the desired frequency of receiving emails will result in a better relationship between the charity and its donors and supporters.”

Still, he cautioned that charities should keep the bigger picture in mind as it relates to CASL. In fact, Blumberg said, some of the most straightforward and simple parts of the legislation are considered “good practice when sending emails to email lists and are not being implemented by some charities.”

For example, a “proper” unsubscribe mechanism should always be embedded, easy and quick to use. Otherwise, he noted, it becomes difficult and time consuming to unsubscribe and this is below the standard that the public expects.

Fear of the unknown

Charities are afraid that the implementation of CASL could reduce their overall email address list, hence lowering returns on either fundraising or data-capture for future campaigns. But Blumberg cautions that numerous charities send out a glut of emails to “people who consistently don't open [them] and who are not interested in receiving emails from the charity. This results in certain major Internet service providers apparently being more likely to flag emails generally as spam. In other words, by paring down your email list, you may actually end up with more people receiving your email.”

Rules of the game

In order for a charity to stay on top of its messaging game, it has to know the rules. Blumberg breaks down the CASL into three easy-to-digest rules:

  1. The first rule of CASL: If it is not a commercial electronic message then CASL doesn't apply.
  2. The second rule of CASL: The "golden rule" is that if you get explicit consent then you are golden. A prime example is a donor indicating consent by ticking off a checkbox in an electronic communication that asks if he or she would like to keep receiving communication from the charity. As such, charities should try to get explicit consent whenever possible. Otherwise, he said, “you are relying on implied consent [which] is more complicated. However, even when charities have either explicit or implicit consent from recipients, they must ensure that the messages contain the prescribed CASL content.”

There is a partial exclusion for messages sent by or on behalf of "registered charities" that "have as its primary purpose raising funds for the charity," Blumberg noted. “This exclusion does not apply to nonprofits, unless they are a registered charity. Most importantly it does not apply if there are a number of purposes for the email, which is often the case, and raising funds is not the primary purpose of the email.”

Clear as mud? Hang on, it gets even muddier.

It’s all about the nuance

Meanwhile, national corporate law firm Blakes (Blake, Cassels & Graydon LLP), issued a CASL update bulletin on May 12, 2014.

In it, Blakes lawyers Tricia Kuhl, Laurie Birbilas and Wendy Mee discussed the difficulty in advising their clients about compliance on CASL due to the uncertain nature of how various sections will be interpreted.

They wrote: “Key to CASL is the concept of a CEM, which is defined as a message sent by any means of telecommunication that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude, has as its purpose, or one of its purposes, to encourage participation in a commercial activity. Many questions have arisen as to the potentially broad scope of this definition.”

Beyond that, they counsel that organizations will need to consider carefully how they use social media.

“Under CASL, an electronic address is broadly defined as an address used in connection with the transmission of an electronic message to an email account, a telephone account, an instant messaging account or any other similar account. The notion of ‘similar account’ has generated much debate about the application of CASL to social media. In response, the CRTC has affirmed that certain social media accounts may constitute a ‘similar account,’ yet has stated that the determination will have to be made on a case-by-case basis.”

Additionally, they write, the CRTC has recently clarified that it “draws a distinction between direct messages sent through social media messaging systems, such as Facebook direct messages and LinkedIn direct messages, which would be viewed as being sent to an electronic address, and messages posted, published or broadcast on social media websites and blogs, such as a Facebook wall post, which would not be viewed as being sent to an electronic address.”

Future of the CASL unclear

The future of the electronic marketplace is set to become a battleground of challenges and legal wrangling over the language and intent of CASL going forward. Charities, nonprofits and for-profits alike will need to pay heed to how they use social media platforms to send messages to ensure they are CASL compliant, Kuhl, Birbilas and Mee write.

In the meantime, it’s expected that more clarification and guidance from the government is forthcoming regarding how to interpret the law.

One thing is clear: on July 1, 2014, the act of merely sending an email from your office to a donor or client will get a lot more complicated.

What are your thoughts on CASL? Is your organization prepared? Care to share your preparations or insights with others in the sector?

Andy Levy-Ajzenkopf is a professional writer living in Toronto. He can be reached at aajzenkopf@yahoo.com.

Photos (from top) via iStock.com. All photos used with permission.

Please note: While we ensure that all links and email addresses are accurate at their publishing date, the quick-changing nature of the web means that some links to other web sites and email addresses may no longer be accurate.

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jephath1@gmail.com jephath1@gmail.com
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