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15 Questions about CASL Answered

On May 29th, 2014, we hosted a webinar with Maanit Zemel, an internet lawyer practicing in Ontario, on the new Canadian Anti-Spam Legislation (CASL) for Non-Profits and Charities.

This post is a summary of the questions that were asked during the webinar's Q&A period. If you'd like to learn more about CASL, you can read our webinar recap, watch a recording of the webinar on our YouTube channel, or download the webinar presentation on SlideShare.

  1. Does CASL make exceptions for smaller organizations? (ie. under 20 employees)
    No, CASL applies to individuals and organizations, regardless of size.

  2. My nonprofit uses a third party agency for email marketing. We submit an ad to the agency and they send email blasts on our behalf. In this scenario, who is responsible for ensuring they have consent from the recipients?
    Both. Your nonprofit needs to ensure that any third party agency you have a contract with after July 1, 2014 is compliant with CASL. Even if the agency is not based in Canada, they still need to comply with the Act.

  3. Are VOIPs (video calling over the Internet) or voice telephone broadcasts considered CEMs?
    These communications can be CEMs, however voice communications are exempt from CASL’s requirements.

  4. Can oral consent be collected by telemarketers?
    Yes, anyone can collect oral consent for you. Just remember that your organization must be able to provide proof of consent. If you’re collecting oral consent over the phone, it's recommended that you (or the telemarketer) electronically record the time and date the consent was given, the form the consent was given, preferably record the consent, and if possible, request the person to send an email to your organization confirming their consent.

  5. If someone who doesn't follow your organization mentions you on Twitter and you respond to them, is that considered a violation of CASL?
    As long as you’re responding to them by posting a tweet on their twitter feed and not sending the message to their electronic address (for example, their email), then it will not be considered a CEM because it is not sent to an “electronic address”.

  6. If at the end of our email signatures we have a sentence promoting a fundraising event or donations to our cause, would this be considered a CEM after July 1st?
    Yes, it would be a CEM after July 1st. You’ll need to get consent from the people you wish to send that email to or meet one of the exemptions I’ve outlined here:

  7. If a CEM recipient purchased a concert ticket, does this mean they have given us implied consent?
    Yes, purchasing a ticket to a concert would create a business relationship. From the point of purchase, your organization will have implied consent for two years* to send the person CEMs.

    *There is currently a 3 year transitional period for implied consent. If you have an existing non-business or business relationship with the recipient of the CEM prior to July 1, 2014, and you have been sending that recipient CEMs prior to July 1, 2014, then you have implied consent to send CEMs to that recipient until July 1, 2017.

  8. If someone forwards our email to another person who has not given consent, who is responsible for sending the CEM - the original sender or the person who forwarded the email?
    Forwarding an email is the same as sending an email. If the person who is forwarding the email does not have consent from the recipient, the email forwarder is liable.

    It is unlikely that the original organization will be liable if it sent the email to people who have given express or implied consent, and have not instructed them to forward the email, or have no knowledge of them doing so. However, if the original organization provided some kind of direction, encouragement or instruction to forward the CEM, such as a sentence saying “forward this email to a friend”, then it may be found liable. In this case, the original organization will need to be very specific as to who the recipients can and can’t forward the email to, such as “forward to a friend with whom you have a personal relationship” since personal relationships are exempt, and include a definition of “personal relationship” in accordance with CASL’s definition.

  9. Is there a particular type of unsubscribe mechanism that should be used?
    You must give the person the ability to unsubscribe in an electronic format or in a manner that is the same as the manner in which you are sending the CEM (e.g., if the CEM is sent by email, they should unsubscribe by email; if the CEM is sent by text, they should unsubscribe by text, etc.) You need to fulfill the request within 10 days. My recommendation is to have a consolidated unsubscribe mechanism and/or system. Do not simply rely on each employee or staff member to manage their own "unsubscribe" list.

  10. When a staff member is sending out non-business related email to everyone in the organization, who is responsible in ensuring the email is CASL compliant - the staff member or the organization?
    According to the CRTC, both are responsible.

  11. A lot of organizations have listservs for their members. If a member sends a CEM to the rest of the listserv, would this be a violation of CASL?
    It depends on how those members became part of the listserv. If members deliberately signed up for the listserv, such as opting into a checkbox or filling out a form and in that form they have given express consent for the rest of the members to send them messages, then they may have given express consent.

    Depending on the circumstances, the listserv may be a forum that is exempt from CASL’s requirements: "CEMs sent within an electronic platform where “unsubscribe” and identifying information is conspicuously published and readily available.”

    If members are added a listserv without giving their express consent, then it may be a violation of CASL.

  12. I heard Directors and Officers can be found personally liable if their organization is in violation of CASL. Can you clarify?
    Any director or officer of the organization may be found personally liable for the violation of CASL by the organization if “they directed, authorized, assented to, acquiesced in, or participated in, the commission of the violation”.

  13. If a volunteer is on a newsletter list but hasn't volunteered in two years, do I need to remove them from my newsletter list even if I use an EMS that is CASL compliant?
    You must get express consent to send any volunteer CEMs beyond the two years.

  14. As a nonprofit, we have an annual walk-a-thon. If a participant sends out an email asking for sponsorships/donations to their walk, is that exempt because the primary purpose is to raise funds?
    It depends on how the email is crafted. If the email says "Please sponsor me for this walk. You can donate here" then the primary purpose is to raise funds and the email is exempt.

    However if the email says something else and at the bottom of the email it mentions "by the way, please donate to my walk" raising funds may not be the considered the primary purpose.

    I recommended that your nonprofit provide sample wording for your walk participants’ messages to ensure that their emails meet the exemption.

  15. If I send a list of events to donors of my charity and included in the list is a paid event from another organization, would that be exempt?
    No, it's not exempt. The email would not be for the primary purpose of raising funds for your charity, and therefore you must have express or implied consent in order to send that CEM.