Canada’s New Anti-Spam Law
What does it mean for your organization?
Introduction
There continues to be a lot of talk about Canada’s new anti-spam law and how it will affect non-profits. The
laws are primarily designed to prevent unwanted marketing and sales e-mails but there are implications for
non-profits. This document details some the most important parts of the law for non-profits and what you need
to be aware of at your organization. Please note that this document does not constitute legal advice.
Anti-Spam Law – effective as of July 1st, 2014
The law strictly prohibits “sending a commercial electronic message to an electronic address (e-mail) recipient
unless: recipient has consented (express, opt-in, or “implied consent”) AND the e-mail conforms with the
prescribed requirements including identifying the sender and contact information and including an
unsubscribe mechanism.”
The 2nd part of this (identifying send and opt out) should not be a concern as these are best practices for e-mail.
If you’re not already including your contact information and an unsubscribe mechanism you need to add these
to your e-mail communication before the law comes into effect on July 1, 2014.
The first part of the law is where you may need to be a little more cautious.
Before talking about whether you have the proper consent there are a number of complete exclusions from the
law:
 Fundraising messages from registered
 Personal or family relationship
charities
 Closed Messaging Systems
 Enquiry or application
 Telco in providing transmission services
 Intra-organization
 Enforce a legal right or due to legal
 Inter-organization
obligation
Most important here are ‘fundraising messages from registered charities’ and ‘enquiry or application’.
First, if your non-profit is a registered Canadian charity and you send out a message that is specifically asking
for a donation to support your mission there is no requirement for consent.
The important thing here is that your e-mail asks for only a donation. If there is a link to anything else (ex. gift
catalogue, home lottery, items for sale, etc.) then your e-mail could be construed as having a ‘commercial’
aspect and would still require consent.
But if you’re a registered charity and you’re strictly asking for a donation, there is no requirement for consent.
In addition (please note this is not explicitly stated in the law), e-mails that are purely informational (including
newsletters) should be fine under the law as the law is only applicable to commercial e-mail messages. If there’s
any commercial nature to it (see above), then consent would be required.
Second, if your organization has received a request for more information (enquiry or application) you can
respond without needing consent. It’s unclear how many e-mails that would include, but a reasonable amount
of back and forth in order to fulfill their request for information should be acceptable within the law.
Where you need to be cautious
Any e-mails your organization sends that fall outside of these two specific areas would require consent either in
the form of express or implied consent. Remember - this is not necessary if you are a registered charity making
a fundraising ask, or are responding to a request for information.
1. Express consent
Would be in the form of the disclaimer which recipients checked (it must be opt-in within the new law) when
they originally provided you with their e-mail address.
This should be very specific, describe to your purpose with something along the lines of “Our organization will
use your e-mail address to keep you updated on activities that are happening at our Foundation, and will email you with specific fundraising requests to help support our initiatives”.
If your organization also uses the e-mail to send other information (newsletters, gift catalogues, lotteries, etc.)
then these should be specifically noted within your request for consent form. As an example, the above line
would probably cover newsletters, but not necessarily gift catalogues or lotteries.
The more specific your consent the better it will hold up. A consent like “Our organization will occasionally
send you information related to your interests” will likely not hold up very well under the new law. And it’s
important to note that if you do need to defend yourself against the new law you do need to show the consent
that the individual agreed to when providing you with their e-mail address. Make sure you keep these on file.
2. Implied consent
Would apply where there is an existing business relationship or existing non-business relationship. The
‘existing business relationship’ applies when the individual has engaged in commercial activity, or there is an
existing written contract in the last two years. This would apply mostly to the purchase of something like a
lottery ticket, and if the individual had done that in the last two years you would have their ‘implied consent’ to
send information about your lottery.
The ‘non-business relationship’ provides implied consent if the individual has ‘made a donation, gift, provided
volunteer work, or is a member (refer to the official law for details on what qualifies here) in the last two years.
So you’re ok to e-mail your recent donors and volunteers with any message (fundraising, marketing or other) as
long as they have made that gift within the last two years (any e-mail still needs to conform with the prescribed
requirements about unsubscribe, etc.). The law isn’t specific on whether taking an action (signing a petition,
attending an event, etc.) would qualify as a non-business relationship so if those are applicable to your
organization you should look up the specific regulations as it relates to the implied consent.
How to prepare for the anti-spam law
So what should your organization do to prepare for these new laws? If you’re a registered charity and you’re
planning to send only fundraising e-mails then there is no action needed – just make sure you are including
your contact information and an unsubscribe link in all emails. Similarly, if you’re only planning to e-mail your
recent donors (last two years) then continue as you’ve been doing as you have implied consent.
If you’re doing anything beyond this then you should review the disclaimer which people agreed to when
signing up for any e-mails from your organization (direct mail or e-mail/online sign-up).
If this is clear in the types of messages you’re sending then you have express consent and you shouldn’t be in
violation of the new law. If you don’t have this information or if you’re not sure if the disclaimer you’ve used
covers all of the communications then you should consult with a lawyer.
If your consent won’t hold up then you could e-mail your entire list to ask for an updated consent. This should
be done before July 1st though as sending this after would technically be in violation of the law since you don’t
yet have their consent.
As noted above this is not a legal opinion of the new law and if you have any specific questions or concerns
regarding your organization’s activities you should consult with a lawyer. Although be warned – in our
experience, our clients receive highly varied interpretations from their lawyers, and have sometimes been
guided to restrict their fundraising activities far more than necessary, with long term repercussions.
So, please keep in mind that legal advice on these matters seems to generally be more conservative than not.