By Derek James
TROY MEDIA COLUMNIST
Canada’s anti-spam law came into force on July 1, 2014. Everyone calls it “CASL” since its real name is an unwieldy 52 words long.
Proponents have touted CASL as a giant leap for economic efficiency in e-commerce by making spam illegal. And CASL does list the promotion of “efficiency” as its purpose. But contrary to the good results this efficiency may bring, CASL could have a decimating effect on charities. Here’s how.
Of all the prohibitions in CASL, the one most significant for charities is the prohibition on sending a so-called “commercial electronic message” (CEM) without the prior consent of the recipient. This includes all messages sent by text, sound, voice, or image to an email address, telephone account, and even instant messaging account. This is supposed to prevent spam.
Effectively, what it does is make all non-personal electronic messages illegal, unless you can find an exemption somewhere in the CASL or its regulations. This is the inverse of what sensible legislation does. Sensible laws target bad behaviour, not render all behaviours bad until proven good. Also, a single email sent to a single recipient can run afoul of the law because there is nothing in CASL saying that spam must have multiple recipients, multiple iterations, or the like.
The consequences of this prohibition will be particularly burdensome for charities. CASL contains no definition of “commercial”, instead defining a “commercial activity” as deeds performed with or without the expectation of profit – even though a dictionary will confirm that “commercial” is inherently tied to the expectation of profit. And as a result, we are left to ferret out for ourselves CASL’s idiosyncratic use of “commercial”.
This is an enormous source of confusion. Had CASL relied on the dictionary definition, charities could rest assured it does not apply to them since they are non-commercial by nature. And that would be a perfectly reasonable conclusion since CASL contains no definition of “commercial”. In fact, many charitable organizations have continued operations as normal unaware that CASL has hung over them the sword of Damocles.
Simply put, CASL does apply to charities. During the government’s public consultations about CASL, some members of the charitable sector argued that compliance would be too onerous for small charities with limited resources.
It complicates fundraising. It restricts how volunteers are contacted. It makes volunteer board member training more complex since each now needs to understand the ins and outs of CASL.
The government responded by including a fundraising exemption specifically for charities (sorry, non-profits, you’re not included). As a result, when the primary purpose of a CEM is fundraising, a registered charity may send it without the prior consent of recipients. Note that since charities have been granted a limited exemption, the intention must be for the rest of CASL to apply to charities.
As it stands, the only other times that CASL permits charities to send CEMs is when recipients have previously provided explicit consent or have implicitly consented by volunteering or donating within the last two years. All other CEMs are illegal, unless another of CASL’s convoluted exemptions applies.
As someone who works in the charitable sector, I know that this will change the way that our work is done – and change it for the worse. Many of the electronic messages relied upon by charities will suddenly become illegal. Plus, with the possibility of a $10 million administrative monetary penalty for failure to comply, CASL will have a chilling effect on how charities contact the interested public by electronic means – this is the opposite of innovation.
Effectively, CASL interferes with the institutional property of charities by making it illegal for them to contact people on their own email distribution lists. This is devastating since these lists are often the result of years of labour and form a large part of the value of an organization. CASL also interferes with the ability of individuals to express themselves freely and to associate with others. And we are meant to believe that this interference will somehow promote efficiency in e-commerce? Not in the charitable sector.
Why has the government done this? It’s difficult to believe that charities are so greatly impeding the efficiency of e-commerce in Canada that a law is necessary. So why punish them?
Why should CASL interfere with otherwise legitimate charitable activities? Likely it’s just sloppy legislation. What is most frustrating about this is that all the government needed to do was include a short provision exempting charities. It was just that simple. But then, common sense has never been the government’s forte.
Derek James From is a Calgary-based lawyer practising constitutional law with the Canadian Constitution Foundation.