On July 27, 2016, the Canadian Radio-television and Telecommunications Commission (“CRTC”) issued an Enforcement Advisory – Notice for businesses and individuals on how to keep records of consent (“the Advisory”). The Advisory applies to anyone sending commercial electronic messages (“CEMs”) under Canada’s anti-spam legislation, which can include registered charities and not-for-profit organizations. The Advisory includes a reminder that section 13 of Canada’s anti-spam legislation (“CASL”) requires the sender of a CEM to be able to prove that they had consent to send each message, even if the sender is relying on implied consent through an existing non-business relationship, e.g., a donation to a registered charity or membership in a “club, association, or voluntary organization”. Because of this, the Advisory cautions senders to keep records of consent. In this regard, CRTC says “Senders of commercial electronic message should consider keeping a hard copy or an electronic record of, among others:
- all evidence of express and implied consent (e.g. audio recordings, copies of signed consent forms, completed electronic forms) from consumers who agree to receive CEMs
- documented methods through which consent was collected
- policies and procedures regarding CASL compliance
- all unsubscribe requests and resulting actions”
The Advisory also provides links to the CRTCs further guidance on corporate compliance programs, and on consent and how to prove consent.
Although many registered charities may be exempt from CASL where their electronic messages have a primary purpose of raising funds, those that do send CEMs need to be aware that it is incumbent on them to prove that they have consent to send a CEM. This means that a registered charity or not-for-profit organization sending a CEM relying on express or implied consent without a record of that consent will not be in compliance with CASL. As such, it is important for registered charities and not-for-profit organizations to review their record keeping requirements in relation to CASL.