Jan 2019 Charity & NFP Law Update
The Canadian Radio-television and Telecommunications Commission (“CRTC”) updated its website on Frequently Asked Questions about Canada’s Anti-Spam Legislation (the “Updated FAQ”) on December 18, 2018. The Updated FAQ provides general information with respect to Canada’s Anti-Spam Legislation (“CASL”), including information about when CASL applies, what constitutes a commercial electronic message (“CEM”), as well as reference to additional guidance from the CRTC, such as the Compliance and Enforcement Information Bulletin CRTC 2018-415, discussed in the November 2018 Charity and NFP Law Update.
Regarding consent, the Updated FAQ states that express consent, unlike implied consent, does not expire. However, consent may be withdrawn at any time. The Updated FAQ also includes information regarding the conspicuous publication exemption, which permits the sending of CEMs to persons who have conspicuously published their electronic address, as well as other exemptions for surveys, market research and employment opportunities.
The Updated FAQ also lists a number of factors for determining whether a “personal relationship” exists in the context of social media. Since CASL applies to CEMs sent to an electronic address, the Updated FAQ defines electronic address as either an email account, an instant messaging account, a telephone account, or any similar account, such as a social media account, as determined on a case-by-case basis. However, the Updated FAQ states that CASL does not apply to the one-way general broadcast of a commercial message on social media.
With regard to the application of CASL to charities and not-for-profits, the Updated FAQ adds little new and removes one of the previously provided examples of CEMs exempt from CASL where the “primary purpose” is to raise funds for a charity.
The Updated FAQ also describes the investigative powers and enforcement actions of the CRTC. Investigative powers include the power to issue a Notice to Provide requiring persons to produce data, information or documents in their possession or control; the Preservation Demand requiring telecommunications service providers to preserve transmission data; the power to apply to court for a Search Warrant. Examples of enforcement actions include a Warning Letter, an Undertaking, a Notice of Violation or an Administrative Monetary Penalty. The Updated FAQ also provides information regarding the appeal process available upon being served with a Notice of Violation from the CRTC.