1. Canada’s Anti-Spam Legislation:
What Charities and Not-For Profits
Need to Know Before July 1, 2014
.Maanit Zemel Esq., Barrister & Solicitor
mzemel@casllaw.ca / (416) 937-9321
Webinar hosted by Techsoup Canada May 29, 2014

2. Overview
1. Overview of Canada’s Anti-Spam
Legislation (CASL)
2. The Commercial Electronic Messages
(CEM) Requirements
3. Tips for preparing for CASL
4. Other CASL requirements

3. What is Canada’s Anti-Spam
Legislation (“CASL”)?
The problem:

4. What is CASL? (cont’d)
The solution: Regulate everyone!
 CASL regulates all “Commercial Electronic Messages”
sent or accessed from a computer in Canada
 CASL also regulates broad range of electronic / online
activities including:
 The installation of computer programs
 Misleading advertising and marketing practices
 Privacy invasion via your computer
 Collecting email addresses without consent (email
harvesting)

5. What is CASL? (cont’d)
Anyone can complain to the
regulators by filing a complaint at:
www.fightspam.gc.ca

6. Fundamental Underlying
Principles
 All of the regulated activities may only
be carried out:
1. With informed consent; and
2. With clear identification of the
sender
 “Opt-In” Regime

7. Significant Consequences for
Non-Compliance
 Administrative monetary penalties:
 Individuals – fines up to $1 million per
violation
 Corporations – fines up to $10 million per
violation
 Private rights of action
 Class actions
 Vicarious liability of corporation for employees
 Liability of officers and directors for acts of
corporation
 Sweeping investigative powers (search and seizure
orders)

8. When will CASL be in force?
 Three important dates:
 July 1, 2014: requirements respecting CEMs
 January 15, 2015: requirements respecting
computer programs
 July 1, 2017:
 End of transition period for implied consent
 private rights of action

9. Regulating Bodies
1) CRTC – CEMs and installation of computer
programs
2) Privacy Commissioner – collection of
personal information and address harvesting
3) Competition Bureau – misleading online
advertising and marketing practices

10. Commercial Electronic
Messages (“CEM”s)
 What is a CEM?
CEM is a message sent by any
electronic means (i.e., email, text,
instant message, tweet) that has,
as its purpose, or one of its
purposes, to encourage
participation in a “commercial
activity”

11. What is a CEM (cont’d)
 “Commercial activity” is:
“any particular transaction, act or
conduct that is of a commercial
character whether or not the
person who carries it out
does so in the expectation of
profit”

12. Do Charities / NPOs Transmit
CEMs?
 Yes!
 Examples of CEMs:
 Emails seeking donations
 Emails selling tickets to an event / lottery
 Emails promoting services
 Emails promoting a charitable event / activity
 Electronic newsletters
 Emails promoting the organization / charity

13. CEM Requirements
 You are prohibited from sending a
CEM to an electronic address unless:
 The receiver has already consented to
the receipt of the CEM; and
 The CEM contains certain prescribed
information
 Subject to limited exclusions /
exemptions

14. CEM Consent Requirements
 CEMs may only be sent with
recipient’s express or implied
consent
 Onus of proving consent rests
with sender

15. CEM Consent (cont’d)
An electronic message requesting
consent is a CEM and is therefore
prohibited (post July 1, 2014)

16. Express Consent
 Request for express consent may be obtained
orally or in writing
 Request for consent must include:
 The purpose for which consent is being sought
(“clearly and simply”)
 Sender’s identifying and contact information
and/or on whose behalf consent is being
sought
 Statement that receiver can withdraw their
consent

17. Express Consent (cont’d)
 Examples of proper forms of express
consent:
 Paper form
 Electronically, not in a form of a CEM, and
cannot include a “pre-checked box”
 On your website
 Orally – give someone a call then ask that
they email / send you their consent

18. Implied Consent
 Consent may be implied when:
 the recipient has:
1) “conspicuously published” his/her electronic
address (on a website for example)
2) has not indicated a desire to not receive
unsolicited CEMs; and
3) the message is relevant to recipient’s business
role, duties or functions
 the recipient has:
1) disclosed his/her electronic address to sender
without indicating a wish not to receive
unsolicited CEMs (e.g., business card); and
2) message is relevant to person’s role or duties in
business or official capacity

19. Implied Consent (cont’d) –
“Non-Business Relationship”
 Applies to charities and NPOs
 Consent is implied when:
 Sender is registered charity (as defined in ITA)
and recipient made donation or performed
volunteer work in preceding two years
 Sender is a non-profit organization (as defined
in ITA) and recipient has been a member in
the preceding two years

20. Implied Consent (cont’d) –
“Existing Business Relationship”
 In the two years prior to the sending of the CEM,
the recipient had:
 Purchased / leased / bartered a product / good / service
/ land from the sender;
 accepted a business / investment / gaming opportunity
offered by the sender; or
 a written contract is created between the recipient and
the sender.
 Or - Six months before the message is sent, the
sender received from the recipient an inquiry or
application about one of the items above.

21. Implied Consent (Cont’d)
 3 Year Transitional Period:
 For parties who are in an existing
business or non-business relationship
- implied consent is extended until
July 1, 2017
 This means that charities and NPOs
have implied consent from their
donors, volunteers and members until
July 1, 2017

22. Information Requirements
for CEMs
 All CEMs must include:
 Identifying and contact information of sender (or
on whose behalf CEM is sent)
 A means by which to contact the sender (to be
effective for at least sixty days)
 An “unsubscribe” mechanism
 When not practical to include in CEM, this
information must be posted on a website and
the CEM must include a link to that website,
which is clearly and prominently set out in
message and is readily accessible

23. “Unsubscribe” Mechanism:
 Must be effective for 60 days
 Must be given effect within 10
days of request
 Must be at no cost to requester

24. Exemptions from CEM
Requirements
 Registered Charities
Exemption:
CEMs sent by or on behalf of a
registered charity and “the
message has as its primary
purpose raising funds for the
charity”

25. Charities Exemption
 Emphasis is on “primary purpose” of message
 Examples:
 Email that provides information about the
charity’s work and contains one sentence
at the bottom asking for donations - is it
for the primary purpose of raising funds?
 probably not
 Email that sells tickets to a charitable
event – is it for the primary purpose of
raising funds?  probably yes

26. Charities Exemption (cont’d)
 What does “raising funds” mean?
 Is it different than “fundraising”, as interpreted by
the CRA?
 CRTC likely to focus less on the intended use
of the funds and more on the content of the
message
 “Primary purpose” is likely to be interpreted
from the point of view of the receiver of the
email (and not of the sender)

27. Other CEM Exemptions
1) “Personal” or “family” relationship
2) A CEM that consists solely of an inquiry or application
3) Solicited CEMs - sent in response to a request, inquiry
or complaint, or otherwise solicited by the person to
whom the message is sent
4) Internal CEMs – sent within an organization / business
and concerns the activities of that organization /
business
5) CEMs between organizations / business – if the
businesses / organizations “have a relationship” and
the CEM concerns activities of the receiver business /
organization
6) CEMs sent to enforce a legal right

28. CEM Exemptions (cont’d)
7) CEMs sent within an electronic platform where
“unsubscribe” and identifying information is
conspicuously published and readily available (e.g.,
within a social network)
8) CEM sent within a limited-access secure account by
the person who provides that account (e.g., banking
portals)
9) CEM sent by a political party for the primary
purpose of soliciting contributions
10) CEMs sent to a foreign jurisdiction (but must comply
with foreign anti-spam laws)
11) Two way voice communications
12) Faxes and voicemail messages sent to telephone
accounts

29. Exemptions that must contain
info and “unsubscribe”
 In limited circumstances, there is no need to obtain
consent but must still include prescribed information
(identifying info + unsubscribe):
1) Third party referral - the first CEM sent to a person based
on a referral from a third party, after which consent will be
needed for added CEMs
2) Provision of quote or estimate in response to a request
3) Warranty, recall or product safety information
4) CEM that delivers a product or service, including updates
and upgrades
5) CEM that facilitates or confirms transactions
6) CEM that provides factual information about:
• Ongoing subscription, membership, accounts, loans
• Ongoing use or ongoing purchases
• Employment relations or benefit plans for employees

30. Do you send
CEMs?
You may be exempt from compliance only If:
The primary purpose of CEM is to raise
funds for the charity*
Are you a
Registered
Charity?
No further action
required
Is the CEM:
• A third party referral?
• Providing a quote or estimate in
response to an request
• Providing warranty, recall or product
safety information
• delivering a product or service, including
updates and upgrades
• facilitating or confirming transactions
• Providing factual information about:
1. Ongoing subscription, membership,
accounts, loans;
2. Ongoing use or ongoing purchases;
3. Employment relations or benefit
plans for employees
No further action
required
No consent required but
CEM must include:
• Identifying information
• Unsubscribe
mechanism
Do Other Exemptions Apply?
Ex.:
• Organization to organization
• Personal / family relationship
• Internal CEM
• An inquiry / application
• A response to an inquiry / request / complaint
• To enforce a legal right
• Sent within a secured access platform
• Within a platform containing unsubscribe and ID info
• To a foreign jurisdiction (must comply with foreign
laws)
Yes Yes
Is Consent Implied?
Only if:
1. You are a registered charity / Not-for-profit org.; and
2. Recipient has been a donor, volunteer or member in the
preceding 2 years
Implied consent only good for 2 years
Need to:
1. Include prescribed info
2. Keep track of 2 years
3. Obtain express consent before 2 years expires
Yes
• Before July 1, 2014:
1. Obtain express consent
2. Include prescribed ID info and unsubscribe mechanism in all CEMs
• After July 1, 2014:
1. Obtain consent in prescribed form
2. Include prescribed ID info and unsubscribe mechanism in all CEMs
No / unsure
No
CASL
Flowchart
for
Charities/NPOs Yes
Yes
(most likely)
No (unlikely)
No
Unsure – consider next step

31. Tips for Preparing for CASL
Tip #1: Get Your Board Onboard.
 Decisions respecting CASL should form part of
the organization’s overall risk management
strategies
 Decisions must be made at board and executive
levels
 If you are not getting the board / ED to pay
attention – remind them of the D&O liability

32. TIPS (cont’d)
TIP #2: CONDUCT AN AUDIT
1) What forms of electronic communications does the organization
use to communicate with internal and external parties?
2) On behalf of which entities does the organization send electronic
communications?
3) What third-parties send electronic communications on your
organization’s behalf?
4) To whom does the organization send electronic communications?
5) What do these communications contain?
6) What is the purpose of sending the electronic communications?

33. Tips (cont’d)
 TIP#3: Develop and
Implement CASL Compliance
Policies and Procedures
 Due Diligence Defence - a
complete defence to CASL violations
 You may rely on the due diligence
defence only if you have a
reasonable compliance policy

34. Compliance Policies (cont’)
 Develop and implement procedures
for:
• requesting, maintaining and
implementing consents
• keeping track of implied consents
• implementing “unsubscribe” requests
 Develop and implement CASL
compliant language

35. Tips (cont’d)
 TIP #4: Training and Education
 Train and educate management,
employees and volunteers on CASL
requirements
 Develop a training program
 Ensure all new hires / volunteers receive
training
 Consider training third-parties that are
sending CEMs on your behalf

36. TIPS (cont’d)
 TIP#5: Review your contracts with
third parties – require CASL compliance
and include indemnification provisions
for non-compliance
 TIP#6: Consider buying insurance for
CASL
 TIP#7: Consult with IT specialists

37. Other CASL Requirements
(non CEM)
1) Installation of computer programs
2) Unauthorized electronic collection
of personal information
3) Email address harvesting
4) Prohibition against misleading
marketing / advertising in
electronic format

38. Computer Programs
 It is prohibited to install a computer program (e.g., software,
applications etc.) on a computer or device (phone, tablet
etc.) in Canada unless express consent is provided by owner
 This requirement applies to upgrade and updates of the
computer program
 Express consent is assumed if:
 Consent was provided at the time the program was installed
 For telecommunication service providers
 To address a failure in the system’s software or hardware
 For specific types of programs (cookies, HTML code etc.)
 Coming into force – January 15, 2015

39. Computer Programs (cont’d)
 Does this requirement apply to your organization?
 Does your organization have an app for mobile devices?
 Does your organization provide services through a computer
program? (e.g., instructional video games)
 Does your organization provide a program for its employees,
members, donors etc. to be used to internally communicate
with the organization (e.g., remote access)
 If the answer is yes - you must seek consent for the
installation, updates and upgrades of the program

40. Computer Programs (cont’d)
 Does your program:
 Collect personal information?
 Interfere with owner’s ability to control their device?
 Change settings or preferences without the owner’s
knowledge?
 Interfere with data, preventing the owner from
accessing it?
 Cause the device to communicate with another
without the knowledge of the owner?
 Install any software that can be activated remotely
by a third party?
 If YES to any of the above - make this information clear
when requesting consent

41. Electronic Collection / Use Of Personal
Information and Address Harvesting
 CASL prohibits anyone from using electronic
systems to collect and use personal
information and email addresses without the
express consent of the person whose
information is collected / used
 Review your online marketing strategy - does
it perform any of these functions?
 If yes - consider eliminating the practice
altogether or obtaining consent

42. How Can We Help You?
 Auditing of current and future practices
 Advice on developing and implementing CASL
compliance
 Drafting and review of compliance policies,
processes, and documentation
 Drafting and review of third party contracts
 Compliance training
 Representation before regulators and courts
 IT Consulting
(www.methodworksconsulting.com)

43. Resources & Updates
 Follow me on Twitter - @maanitzemel;
@casllaw
 http://www.fightspam.gc.ca/
 http://www.crtc.gc.ca/eng/casl-
lcap.htm
 https://www.ic.gc.ca/eic/site/ecic-
ceac.nsf/eng/gv00521.html

44. QUESTIONS?
Maanit Zemel
mzemel@casllaw.ca / @maanitzemel
Disclaimer: This presentation is provided as an information service and is a summary of
current legal issues. The information is not meant as legal opinion or advice and viewers
are cautioned not to act on information provided in this publication without seeking
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