Charities, non-profits and CASL

February 21st, 2013 by Barry Sookman Leave a reply »

Some people mistakenly think that only businesses find Canada’s anti-spam law (CASL) to be burdensome, unworkable, and counter-productive. However, this view appears to be shared by every sector that is faced with compliance including charities and not for profit organizations, universities, colleges and hospitals.

Industry Canada has now received submissions to the consultation from organizations representing the entire charitable and non-profit sectors. The submissions include calls by each of the Ontario Nonprofit Network, Imagine Canada, and the Association of Universities and Colleges of Canada (AUCC) for a complete exemption from CASL. They, along with Canadian Bar Association, provide example after example of how CASL’s “ban all” approach to regulating electronic messages with any direct or indirect commercial content or links will have very deleterious implications, in this case for charities and not for profit organizations.

Imagine Canada’s submission asked that charities and nonprofits be exempted from CASL. Its reasons included the following:

1. The definition of “commercial electronic message” is sufficiently broad that it will restrict the ability of many charities and public-benefit nonprofits to carry out activities that further their missions to serve Canadians and communities.

2. The draft regulations, as presented, would place undue financial and administrative burdens on charities and public-benefit nonprofits.

3. The draft regulations do not reflect or accommodate the ways in which charities and public benefit nonprofits communicate with each other, with key stakeholders, or with the general public.

4. The draft regulations are inconsistent with other domestic policies and with the federal government’s stated objectives regarding philanthropy and the facilitation of earned income by charities and public-benefit nonprofits.

The Ontario Nonprofit Network also sought a complete exemption from CASL for non-profit organizations such as entities who are organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than profit. Its submission described numerous instances in which non-profits would be impacted by CASL including a children’s soccer program, an online women’s collective that organizes clothing drives for women’s shelters, a casting call by a community theatre, an organization supporting children with developmental disabilities, and organizations that deal with child welfare, young offenders or reproductive health rights.

Its reasons for seeking the exemption included the following:

1. The regulations as presented do not support or accommodate the organizational structures and community building work of the thousands of small and mid-size charitable and nonprofit organizations providing public benefit in communities.

2. Small and mid-size charitable and nonprofit organizations cannot comply with CASL and its regulations and undertake their day-to-day work. There is a fundamental conflict that will either impede their work in communities or, as noncompliant, leave them vulnerable to potentially prohibitive fines and private actions.

3. The legislation and regulation will place undue financial and administrative burden on those nonprofit organizations which attempt to comply.

4. The prohibitive costs and risks associated with requiring that charities and nonprofit organizations manage and maintain express and implied consent records across their complex databases and ever-changing community connections and relationships is not justified given their negligible participation in the generation of spam.

The Canadian Bar Association brief contained a thoughtful analysis of problems for charities and the not-for profit sectors. In concluding it said “It is critical that the uncertainty about application of the Act to the electronic communications of charities and NPOs be resolved before the Regulations come into force. Otherwise, charities and NPOs will be faced with the monumental task, with limited resources, of seeking consent for many of its electronic communications without a clear understanding of whether it is required.”

In a previous post, I highlighted that charities and the not for profit sectors would be hit hard by CASL. Lorne Salzman also published an article on the subject, which was submitted along with mine to the Industry Canada consultation on the draft Electronic Commerce Protection Regulations.

Canada’s anti-spam law (aka Canada’s anti-speech law), if not fixed before it comes into effect, will result in an electronic communications lock down that will have widespread impacts throughout Canada including on charities and the not for profit sectors.

About the only person that believes that charities, not for profit and other organizations will not be negatively impacted by CASL is Michael Geist.

For more information about CASL, see, CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline.

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