In my last post, Part 1 of this series, I explained how the charitable and not-for-profit sector could without much difficulty comply with the requirements to obtain consent for the sending of commercial electronic messages and to comply with the unsubscribe requirement.
In real life, charitable and not-for-profit organisations send few messages to strangers. Their fundraising and other functions (such as membership drives) are not pursued by a central bureaucracy, but rather through members or volunteers who use their networks of family, friends, colleagues and community contacts to seek out funding, reach out for new members or volunteers, to seek out joint venturing opportunities or to obtain the best prices for good or services. It is this layer of personal connections that is a primary explanation for the robustness of the charitable and not-for-profit sector: even a small organisation will have a profound level of access to the broader community through its participants.
When a charitable or not-for-profit organisation sells t-shirts or chocolate bars, it does not send out an email to the general public: the sale item is sold through its members, who sell, primarily, to their friends, relatives and neighbours.
The Knights of Columbus in my locality used to run a lottery (they may still do) – the grand prizes were automobiles. I never received an email from them, but each year they rented a booth at a local mall, staffed by member volunteers, who sold the tickets to the public, and I often bought tickets at the booth. Sometimes a volunteer would venture into the Saturday shoppers to direct people to the booth. It is kind of hard to ignore the entreaty of a polite member of the community who is asking so little.
The same applies for the ubiquitous chocolate bars sold to support minor hockey, school trips, and a thousand other good causes. Every office has its cycle of parents who bring a box of bars or girl guide cookies into work and sell them to friends and colleagues. Children would go door to door through their neighbourhoods to sell bars or cookies.
It may be that some of that reliance on networks of family and friends now takes place online, but the principle remains the same: the charitable and not-for-profit sector works on personal networks. Commercial electronic communications between volunteer members and their friends and relatives are shielded from the application of CASL. Where a person is in a “personal relationship” or a “family relationship” with the recipient, their commercial messages do not require prior consent, and need not contain an unsubscribe mechanism. The sanction for sending an unwanted commercial message in such circumstances is not CASL, but the potential social sanction or opprobrium of friends or relatives who really don’t want to receive such messages. Problems are dealt with at a personal level. The overly keen recruiter or vendor will not face the CRTC, but rather the wrath of those who have had enough already.
I have tried to work through a number of scenarios, based on my experience and those of my friends. While one can quibble about whether the definition of “family relationship” or “personal relationship” is too narrowly drawn, my personal view is that the definitions are sufficiently robust that virtually all of the activities that draw the attention of CASL are conducted through means that are exempt from CASL scrutiny. I do not think that the soccer and hockey moms and dads have any reason to be concerned about CASL, nor do the local food banks, the red cross blood donor clinics, or the service clubs who do good works in their communities.
It has been argued that CASL might hamper collaborative research efforts by not-for-profit institutions such as universities or research institutes. Again, I think this unlikely. First, I don’t think much collaboration begins with online “cold calls”. The circles of those doing research on any given subject are necessarily small. Most researchers know who else is working in their areas of interests and, moreover, know their counterparts personally from conferences and symposia, academic exchanges, publication and correspondence, participation in learned societies and editing journals. Research is networked – not stove piped. A researcher is more likely to know a researcher at another university who works in the same problem area than know a researcher working in a different problem area in his university department. Even where researchers may not have met, they are apt to know each other’s work and have exchanged views and opinions through one of a number of channels of communications. The definition of “personal relationship” in CASL was broadened to encompass just such alternative basis for friendship, whether by classic snail mail or by a history of online communications, or both.
Collaborative efforts spring from shared interests and mutual regard. That is to say, the vast majority of collaborative efforts result from the personal relationships of the participating researchers. That being so, the vast majority of electronic correspondence relating to research and collaboration will be exempt from CASL, as commercial messages sent between friends are exempt from the requirements of CASL.
In coming posts, I will explore 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.