CASL: Charities and Not-for-Profit Organisations Part 1 Express Consent and the “existing non-business relationship”

palmer lawyer ottawaI have been noting with interest the concerns that have been expressed by the charitable and not-for-profit sector respecting the application of CASL to their activities. I am deeply sympathetic to the needs of the charitable and not-for-profit sector, having myself been on charitable boards, school councils and active in community groups. Persons who contribute through their labour, ideas, time and money to the greater community do immense good in Canada. It is obvious to me that the impact of CASL on the charitable and not-for-profit sector should be as minimal as possible. In this and subsequent posts, I will examine what I think are the key issues that need to be understood in order to assess fairly the impact of CASL on the charitable and not-for-profit sector.

CASL has no special application to the charitable and not-for-profit sector. When a charitable or not-for-profit organisation is going on about its principal activities, CASL has little to say. The solicitation of donations, membership campaigns, organising the work, the conduct of committee work do not attract the attention of CASL. However, unlike the telemarketing provisions of the Telecommunications Act, the mere fact of being a charitable organisation does not confer a special status on that organisation.

To what activities does CASL apply? CASL applies where charitable and not-for-profit organisations raise money through commercial transactions such as the sale of goods, lottery tickets, tickets to fund-raising dinners and the sale of the ubiquitous candy bars. That is, when a charitable or not-for-profit organisation sells a good or provides a service in exchange for money, its electronic messages must comply with CASL. Essentially, CASL requires that commercial electronic messages not be sent to a recipient unless it is sent with the consent (express or implied) of the recipient, and contains an unsubscribe mechanism.

Compliance with CASL need not be complex or involved. CASL is flexible and does not require small organisations to take extraordinary measures to meet its requirements.

The first point is that an organisation can simply get express consent to the receipt of commercial communications at the time when a member joins, or a donor makes an initial gift, or when a volunteer joins the team. An express consent is valid until revoked by the message’s recipient, so a minimum of forethought means that an organisation can rely on its email lists for an unlimited period of time.

For organisations that have not obtained an express consent, CASL contains a specific provision (subsection 10(13)) that extends to charitable and not-for-profit organisations: an implied consent (that parallels the “existing business relationship” provision in subsection 10(10)). The consent is implied for two years from that last contact between the organisation and the individual. This provision enables a charitable and not-for-profit organisation to market to current and recent former members, volunteers, donors and the like. This provision accords the relationships between the charitable and not-for-profit sector and its people a status comparable to that of businesses to their existing customer base.

It should be borne in mind, however, that commercial messages that offer goods or services must, even where express consent has been obtained or a consent can be implied, contain an unsubscribe mechanism. This requirement can be satisfied by a mere statement that if the recipient doesn’t want to receive further commercial messages, to reply to that effect to the organisation. Larger organisations may want to include the hyper-linked unsubscribe, but small organisations can maintain their lists the old-fashioned way. They need to be careful, however, to ensure that if they have received a request not to receive further commercial messages, they have to give effect to that request within 10 days (which may mean no follow-up reminders to the persons who have opted out).

In coming posts, I will explain further how CASL may apply to charitable and not-for-profit organisations.

The postings in this blog are not intended to provide legal advice. If your organisation needs specific advice, contact your regular lawyer or Philip Palmer Law, and we will help you address your compliance issues.

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