Canada’s Anti-Spam Law (CASL) went into effect on July 1, 2014, but an important grace period for the law terminates this Saturday, July 1, 2017. That grace period stayed the right of private action under CASL, meaning that the only penalties assessable for violations of CASL to date are administrative fines. Beginning on July 1, 2017, however, any person that believes he or she is impacted by a violation of CASL can sue in a court of law and obtain a judgment of up to $1,000,000 per day that CASL violations existed.

CASL applies to U.S. companies, including U.S. non-profit corporations, that send email or other electronic messages to recipients in Canada, whether or not the entity is actually aware that one or more recipients is in Canada. This post points out CASL requirements through the lens of a U.S. non-profit, but all companies with geographically wide customer bases or email distribution should review CASLs requirements to ensure that they comply before the end of the grace period this weekend.

CASL applies to any electronic message sent to a recipient in Canada if that electronic message qualifies as a Commercial Electronic Message (CEM). A CEM is a message that encourages participation in a commercial activity. CEM includes all types of electronic messages including email, text messages, or audio or video messages sent electronically. By way of example, the following types of electronic messages commonly sent by non-profits may qualify as CEM: (1) emails or other electronic messages soliciting donations; (2) emails or other electronic messages soliciting ticket sales to a paid fundraising event; (3) emails or other electronic messages soliciting sponsorship; (4) emails or other electronic messages soliciting new members, or participation in events; (5) emails or other electronic messages advertising another entity’s commercial products or services; or (6) electronic newsletters or event updates including any of the above types of messaging.

For any emails or other electronic messages which may fall into any of the above categories of CEM, or any other type of messaging that can reasonably be characterized as “encourage[ing] participation in commercial activity” and which may be sent to a recipient in Canada, the sender should ensure that the message complies with the following consent and content requirements.

Consent Requirements for CEM

Prior to sending any CEM that may be transmitted to a recipient in Canada, the sender should receive and document consent from each recipient of the message in one of the following forms:

A) Express consent (g., electronic mailing list subscribers):

This could be in the form of recipient sign-up for an electronic mailing list or listserv. In order to serve as express consent, all of the following conditions must be present:

1. An indication at the time of sign-up that the sender is seeking the recipient’s consent to send the recipient future emails/electronic messages;
2. Notice of an unsubscribe option or other statement indicating that the recipient can withdraw their consent to receive future emails;
3. The sender’s legal name and mailing address; and
4. Either a website, email address or phone number at which the sender can be reached.

B) Implied consent (g., recent donors):

This would exist if the recipient and the sender have an “existing business relationship”. However, implied consent only lasts for two years from the end of the most recent “business relationship” and must be renewed after that timeframe if the sender wishes to continue to send CEM to these recipients. By way of example, implied consent may be found for any recipient that has:

1. Made a donation to the sender/non-profit within the past two years;
2. Paid a registration fee for an event held by the sender/non-profit within the past two years;
3. Volunteered for the sender/non-profit within the past two years;
4. Purchased products or services from the sender/non-profit within the past two years; and/or
5. Entered into a contract with the sender/non-profit within the past two years.

Content Requirements for CEM

Any CEM that may be transmitted to a recipient in Canada must include the following:

1. An unsubscribe mechanism;
2. The sender’s legal name and mailing address; and
3. Either a website or email address at which the sender can be reached.