UPDATE: The Government of Canada 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.
The provisions, known as private right of action, would have allowed lawsuits to be filed against individuals and organizations for alleged violations of the legislation.
The provisions were scheduled to come into force on July 1, 2017, but have now been suspended.
The Government supports a balanced approach that protects the interests of consumers while eliminating any unintended consequences for organizations that have legitimate reasons for communicating electronically with Canadians.
For that reason, the Government will ask a parliamentary committee to review the legislation, in keeping with the existing provisions of CASL.
CASL is clear as mud – at best. Knowing whether you need implied or direct consent is perplexing and a maximum $1 million dollar penalty for violation is downright frightening. So, let’s break it down and outline what your organization needs to know to be protected.
Nonprofits need to know about CASL, or Canada’s Anti-Spam Law as it applies to commercial electronic messages. These are messages intended to encourage participation in a commercial activity such as: purchase a ticket, purchase a membership, etc.
How to send a CEM
To send a CEM to a person, business or organization in Canada, you must have three things:
What is consent?
You must have the recipients consent to send a CEM. It can come in the form of:
Express consent is the gold standard. For nonprofits, this could look like: a person signing up for your newsletters, or perhaps a recipient clicking “Yes, I would like to receive emails from your organization”
A little tougher to decipher – Implied consent can be shown in a few different ways:
There are instances where CEMs are exempt from CASL. Here are some most related to nonprofits
*ID and unsubscribe mechanism included on platform
What’s changing on July 1?
It’s the end of the transition period for implied consent. Now, the general rule is: Consent is implied two years after relationship ends.
Private Right of Action See above, this has been suspended by the Government of Canada
This is the scary part. Any individual who is the victim of a CASL violation can sue the organization who has violated CASL. Before July 1, only the CRTC, OPC and Competition Bureau could prosecute. For CEM provisions, this is $200 per violation, maximum $1 million each day violation occurred. This could be bad for CEMs sent to a wide range of people. There is potential for class action lawsuits and there is potential director/officer liability. Your organization is also responsible for all violations committed by employees acting in scope of their authority.
The steps your organization should take