June 2017 Update
Advocacy win! Suspension of anti-spam Private Right of Action means board members won’t have to risk personal assets
The federal government is indefinitely suspending the Private Right of Action (PRA) provisions in Canada’s Anti-Spam Law (CASL).
The Private Right of Action is a right for private parties to obtain statutory damages for breach of CASL’s anti-spam commercial electronic messages regulations, including email harvesting restrictions under the Personal Information Protection and Electronic Documents Act (PIDEDA) (with damages up to $200 for each contravention to a maximum of $1,000,000 per day.)
We appreciate that the Minister of Innovation, Science and Economic Development heard our concerns and that the provision has been delayed. ONN and Imagine Canada had sent a joint letter to the Minister urging delay of PRA provisions until after CASL legislative review.
Our organizations will continue to monitor updates on this file, including the Industry Committee, review of the legislation and keep the sector informed.
Government of Canada: Government of Canada suspends lawsuit provision in anti-spam legislation
Government of Canada: Canada’s Anti-Spam Legislation
Ontario Nonprofit Network: Canada’s Anti-Spam Legislation and Your Nonprofit
Victoire-de-notre-plaidoyer-Imagine et l’ONN_.final_fr.pdf- 8 juin 2017
Top 10 things nonprofits need to know about anti-spam legislation
1. Legislation covers “commercial” electronic messages only. So if no transaction is involved, CASL doesn’t apply.
2. Fundraising emails from charities are exempt. See Imagine Canada’s update.
3. Other revenue-generating activities by nonprofits and charities are not exempt.
4. Legislation will be proclaimed on July 1, 2014 (but organizations will have 3 years to get permission where required).
5. Commercial electronic messages must have an unsubscribe function.
6. Commercial electronic messages must clearly identify the organization.
7. If people signed up for your newsletter directly, it’s ok to continue communicating with them.
8. You’ll need permission before you can add people to other lists (like adding program graduates to your general newsletter list).
9. Day-to-day communications are exempt, so most routine work/ activity emails to other organizations or to volunteers are ok.
10. ONN will be hosting webinars on anti-spam in 2014 to help nonprofits understand changes and obligations.
Why are nonprofits affected?
Many nonprofits generate their own revenue, by charging fees for products and services and participation in activities and programs. Unfortunately, the legislation and proposed regulations were drafted initially for commercial businesses and did not accommodate for the unique activities of the nonprofit sector and its community-building work. This means that many revenue-generating activities of the nonprofit sector, however small the fee, fall under the anti-spam legislation.
What are our obligations as nonprofits and charities under CASL?
CASL requires that a message with a commercial purpose only be sent to individuals who have:
– Agreed to receive messages (CASL legislation sets out elements of the forms of consent)
– An existing relationship with the organization (e.g. previously bought event tickets, are a client, etc.) OR
– Made an inquiry to the organization (e.g. asked about the summer soccer program).
What this means in practical terms is nonprofit organizations will have to ensure they get permission before adding people to their permanent mailing lists, visibly identify their organization in emails, and include an unsubscribe option in their emails and on their websites. For registered charities that have separate mailing lists for fundraising purposes only, those mailing lists will be exempt from complying with CASL.
Certain other communications are exempt from CASL for all nonprofits. This includes day-to-day communications with other organizations, since CASL is mainly focused on commercial communications with the public.
Read the regulations and an explanation of the changes on the Federal Government’s website.
When does my nonprofit to have to do something about this?
The legislation will be proclaimed July 1, 2014 and while some provisions will immediately come into effect, organizations have three years to comply.
Advocacy work by ONN and sector organizations
ONN and others organizations made submissions to Industry Canada in February 2013 asking that the nonprofit sector, including charities, be exempt from CASL. Failing an exemption, we asked for changes to the regulations and the sector achieved some ‘wins’:
- Registered charities were exempted for commercial email for fundraising activities that involve “messages that have its primary purpose raising funds for charity” (regs. 3.g). Submissions by the sector, including ONN, helped get this win for fundraising activities.
- Organizations can continue communications to existing lists, where contacts have already given consent to receive emails. This is an important “win” because there is no expiry limit on express consent; however where an organization has not received express consent (e.g. someone has subscribed to your newsletter), your organization has a three year transitional period to receive permission to continue sending emails. [*Note: A bit of ‘legalese’, but this is important because once you’ve received ‘express permission’ it’s not time-limited, whereas time limits apply (two years) for implied consent based on existing relationships.
- The types of communications now exempt from CASL have been broadened. Sector advocacy helped to extend definitions of covered relationships, from beyond strictly business relationships, to include non-business relationships and messages about the activities of the organization. This is key for a sector that shares information often through its networks!
- The right of private action (private lawsuits) has been delayed until July 1, 2017. This gives the sector more time to make the case that voluntary board members should not be personally liable under CASL private actions.
While these demonstrate the sector’s ability to have impact, ONN is disappointed that public benefit nonprofits and their revenue-generating activities were not given the same exemption as charitable fundraising. The public benefit sector, which includes charities and nonprofits, together are critical to building healthy and resilient communities. The nonprofit sector should not be included in legislation aimed at commercial activities, and CASL regulations will impose a complex administrative burden on organizations to comply.
For an overview of the concerns of the nonprofit sector, read ONN’s brief to Industry Canada in February 2013.
CASL limits electronic communications between parties to those instances “where the party communicating a commercial message has the express consent of the recipient.” Commercial messages include any communication that involves a sale or fee.
Subscribe to ONN news to get updates directly. CASL has been implemented and ONN is watching for how this is affecting the sector. We’ll keep you updated on news for the sector.