With six weeks to go before the anti-spam provisions of CASL come into force, there is considerable uncertainty as to what is a commercial electronic message (or “cem” as its known in the CASL jargon). This results from the cumulative impact of the wide inclusive definition of “commercial electronic message” and the circularity of the definition of “commercial activity”. It has to be acknowledged that too much is swept into the net, and too little is released. However, while the sweep is broad, it is not universal in its application.
It is important to realize that there are vast realms of electronic discourse that are not captured. This is a critical threshold issue: if you are not sending a commercial electronic message, the anti-spam provisions simply do not apply. Thus, it is critical that anyone seeking to assess the impact of CASL on their business or organization critically examine the message or class of messages to decide whether a message is correctly considered a cem. One has to look both at the message and its context to make this determination. The same content may fit into different categories based on the context of the message and the relationship between the sender and recipient.
Let’s look at a few borderline cases and see if we can derive some rules that permit us to make some distinctions between what is not and what is not considered to be a “commercial electronic message” or “cem” as its known in the CASL legal world.
First, messages from government to citizens or businesses are not generally caught: an activity in support of a legislative or governmental policy objective cannot be said to be a commercial message. This applies to federal and provincial governments and municipalities. While the CRTC has not pronounced on how it will interpret messages sent in this category, it makes sense that the messages sent by a government to its citizenry that relate to government programs or facilities are not commercial. This is so even where the message deals with matters like rents for the use of ice rinks or charges for the use of gyms, parking facilities or public buildings. All of these relate to the functions of a municipality qua government. Similar thinking applies to take messages relating to economic development and investment outside the scope of cems.
There may be situations in which a municipality may actually engage in commercial activity – but they will be rare. The mere fact that tuitions, rents or user fees are charged by a municipality will not change the character of its activity: it provides facilities and services in fulfillment of its legislative mandate.
It must be acknowledged that municipalities may offer a range of services in the form of utilities such as electric power, public transportation, and water and sewage. In some cases telephone services remain a municipal utility. Sometimes these activities may be conducted directly by the municipality – sometimes through corporate entities. Given the efficiencies that electronic delivery provides compared to mail or hand delivery, municipalities have every reason to maximize the use of electronic delivery of bills and information of assistance to its customers. CASL does not inhibit reliance on electronic communication with the public.
That said, the requirements of CASL are not onerous. CASL requires three things:
1. Prior consent of the recipient:
Municipalities do not send electronic messages in the blind. Members of the public will have signed up for electronic billings or information delivery (Our household subscribes to municipal notices respecting parking restrictions arising from snow clearing or street cleaning. We proactively signed up for this service). It may be difficult to document how particular consents were obtained, but prospective record keeping will likely be sufficient to avoid serious problems of proof. Given the doubts as to whether municipal messages are commercial, I don’t recommend municipalities scrub current lists, but rather design programs to ensure that documentation of consent measures are put in place so that there will be no issue of recipient consent within a few years.
2. Proper identification of the sender
It is hard to conceive of a municipality or one of its departments or utilities communicating with the public without proper identifying information. All that is required is a mailing address, a viable contact phone number, and the email or website address of the sender. One suspects that municipal emails already contain such information – whether the message is purely administrative and governmental in character, or contains some element that could be construed as potentially commercial. After all, the purpose of email communication is to engage the recipient, and so the provision of information enabling the public to contact the responsible municipal officials for follow up discussion is very much in the interests of the sender municipality or its agents.
3. Unsubscribe mechanism
CASL requires that cems contain an unsubscribe mechanism. The unsubscribe must be given effect within 10 days. There is no technological prescription as to how the unsubscribe must work, apart from that the unsubscribe must function electronically. A return email address or web page address are sufficient to satisfy the requirements of the Act. Are there any situations where a municipality would not want to provide an unsubscribe? It need not be an automated system – it can be a manual system. An email from the recipient to say they no longer want to receive the type of message will do. All that is required is that the municipality act reasonably promptly to ensure that the appropriate email list is purged of the relevant address. It is likely cheapest if the process is automated, but so long as the job gets done within the 10 day time frame that CASL prescribes.
An issue arises where the municipality or a utility has adopted, for instance, electronic billing. In such a case, what does an unsubscribe mean? It is perfectly in order for the municipality to have a person who wishes to unsubscribe from electronic billing directed to a webpage that, while still enabling the citizen to continue to make the choice to unsubscribe, notifies the citizen that unsubscribing may mean incurring extra costs associated with surface delivery of billings.
Overall, CASL is unlikely to pose much of a threat to the normal conduct of municipal government. The few requirements of CASL are consistent with good electronic communication practices that are already widely adopted in the world of electronic communication – even those that are outside the realm of commercial communication. While I think the application of CASL to municipal operations is likely to be limited, CASL requirements should not pose a major challenge in terms of compliance, and doubtless reflect existing best practices even in the instance of purely governmental communication with citizens.