For the latest information and updates on Canada’s Anti-Spam Legislation, please visit the CASL website of the Government of Canada.
At the CCAE Board of Directors meeting in Toronto on March 4, 2014, the Board held a conference call with Andy Kaplan-Myrth, Policy Advisor, National Anti-Spam Coordinating Body, Digital Policy Branch, Industry Canada. During this session, a number of issues about advancement activities and Canada's Anti-Spam Legislation (CASL) were clarified.
Following is a list of Frequently Asked Questions related to CASL, based on the conference call and information on the website fightspam.gc.ca
These FAQs are not a substitute for legal advice on specific questions related to CASL. Schools are advised to seek legal counsel, when in doubt.
CASL Background and Purpose
Q: Who administers Canada's Anti-Spam Legislation (CASL)?
A: There are three government agencies responsible for enforcement of the law. When the new law is in force, it will allow:
- The Canadian Radio-television and Telecommunications Commission (CRTC) to issue administrative monetary penalties for violations of the new anti-spam law.
- The Competition Bureau to seek administrative monetary penalties or criminal sanctions under the Competition Act.
- The Office of the Privacy Commissioner to exercise new powers under an amended Personal Information Protection and Electronic Documents Act.
Q: When does this legislation come into effect?
The Act took effect on July 1, 2014. The law will help to protect Canadians while ensuring that businesses can continue to compete in the global marketplace. On January 15, 2015, sections of the Act related to the unsolicited installation of computer programs or software came into force, and the Private Right of Action provisions will come into force on July 1, 2017.
Q: What are the primary purposes of CASL?
A: CASL provisions are designed to be:
- Designed as amendments to PIPEDA (Personal Information Protection and Electronic Documents Act) prohibiting address harvesting and personal information harvesting
Q: How does CASL limit SPAM?
A: Under CASL, all commercial electronic messages (CEMs - see below for definition) can be sent only with the prior consent of the person receiving the CEM. Such consent may be either express or implied. Requiring such consent is aimed at limiting the sending of SPAM (unwanted CEM contact).
Q: What is a commercial electronic message?
A: A CEM is any electronic message (e.g., e-mail, electronic news bulletin, or invitation sent online) that encourages participation in a commercial activity, regardless of whether there is an expectation of profit.
Q: What are the terms of consent under CASL for sending Commercial Electronic Messages (CEMs)?
A: Generally, the sender will need to obtain consent from the recipient before sending the message, and will need to include information that identifies the sender and enables the recipient to withdraw consent.
Q: What entities and activities are exempt from the CEM provisions of CASL?
A: Charities are exempt from CASL for all non-profit activities.
CASL and Canadian educational advancement
Q: How is consent to receive CEMs defined under CASL, and how does this apply to advancement activities?
A: If there is no established prior relationship between sender and receiver of the CEM, express consent to send CEMs must be received in advance; e.g., by checking a box on a form that gives the sender permission to send CEMs (“Yes, I want to receive your newsletter”). Express consent does not expire, but it may be revoked, and every CEM must provide the option of revoking consent (e.g., unsubscribe).
Implied consent exists where there is already an established relationship between sender and receiver. Membership is a form of implied consent to send CEMs. For example, alumni imply their consent to receive CEMs from alma mater because they are members of the Alumni Association.
If a school or organization obtains electronic contact information through registration at an event, implied consent has been established.
Implied consent expires 3 years after a relationship changes. After that, the sender of CEMs must seek express consent from the receiver. CASL apparently permits universities to continue to send commercial communications to alumni until July 1, 2017 under a three-year transitional provision, as there have been previous existing business relationships with these former students. During these three years, universities will need to seek express consent from alumni.
Q: How are relationships between an independent school, college, institute, cégep, or university and its constituents defined?
A: A school has a business relationship with its students and / or their parents, as they pay tuition and fees. Non-business relationships exist with volunteers and donors. These pre-established relationships generate implied consent to receive CEMs.
Between a school and other schools there is a business relationship.
Q: How does a school indicate that it has consent to send CEMs to receivers who do not have an established relationship?
A: A school should audit all contact lists so it can specify how it received contact information from members of the wider community with no existing relationship (e.g., when inviting neighbours or local political figures to attend a Gala).
Q: How does CASL affect affinity programs and CEMs related to affinity partner offerings?
A: Affinity partners are third-party providers that may be for-profit entities. It is acceptable for the school to send out CEMs on behalf of the affinity partner so long as the school does not give the partner direct access to the school’s contact lists without express consent from each receiver.
The school must provide, with each CEM, the option to unsubscribe from third-party messages sent on behalf of an affinity partner or other entity, as well as the option to refuse all CEMs from the school.