Nov 2017 Charity & NFP Law Update
In October 2017, Imagine Canada submitted its Review of Canada’s Anti-Spam Law (the “Review”) to the House of Commons Standing Committee on Industry, Science and Technology, along with its recommendations concerning the regulations under Canada’s Anti-Spam Law (“CASL”), particularly as they affect registered charities and other not-for-profits.
The Review recommends an exemption for registered charities from the requirements under CASL for consent. While CASL provides a limited exemption for commercial electronic messages (“CEMs”) sent by or on behalf of charities when their primary purpose is to raise funds for the charity, the Review stated that there is currently uncertainty over the existing exemption and the degree to which registered charities must comply with CASL, which has led to compliance costs. These includes costs incurred by charities that do not sent CEMs but that nonetheless believe they must comply with CASL. The Review does not recommend an exemption from the prescribed information requirements of CASL, i.e., including an unsubscribe mechanism or sender identification, where a charity sends a CEM that is not otherwise exempt.
The Review also recommends an exemption for certain other not-for-profits, which it refers to as “public-benefit nonprofits”, as no such exemption currently exists, as some entities that are not registered charities provide the same or similar community services as do charities.
Finally, the Review recommends an exemption to private rights of action against registered charities and other not-for-profits under CASL. Although the coming into force of the provisions in CASL concerning private rights of action has been temporarily suspended, their eventual coming into force may expose charities to the risk of private claims and class actions.
The Review provides insight into some pitfalls of CASL as it pertains to charities and not-for-profits, and into some of the liabilities that these organizations may face. Organizations sending CEMs may be interested in reading the recommendations under the Review to better understand various pitfalls, and should consult with legal counsel to discuss compliance with CASL.