Canadian Lawyer InHouse

june 2014 24 INHOUSE But, according to the Ontario Nonprofi t Network, many non-profi ts generate their own revenue by charging fees for products and services and participation in activities and programs. "Unfortunately, the legislation and pro- posed regulations were drafted initially for commercial businesses and did not accom- modate for the unique activities of the non- profi t sector and its community-building work," states the Ontario Nonprofi t Network on its web site. And this means many reve- nue-generating activities of the non-profi t sector, however small, fall under CASL. While the legislation goes into effect on July 1, organizations will have three years to get opt-in permission that will allow them to legally communicate with the people on their mailing lists. "The legislation really ought to have been much more narrowly focused," says Barry Sookman, senior partner with McCarthy Tétrault LLP. CASL should have been drafted in a way that targets real offenders and offensive messages, he adds. But, as it stands, the scope is undifferentiated "by actor or even by message." Charities typically provide community services that are socially benefi cial, but they typically have limited budgets. "Those are the kinds of things you would want to en- courage," says Sookman. "You would want them to reach out to the community." But CASL could impact their ability to do that. What is still somewhat unclear is the defi nition of a "commercial electronic mes- sage," or CEM. Basically, for an e-mail to be a CEM, it must encourage participation in a commercial activity. Many charities provide inducements to donate, says Sookman, from newsletters to C anada's anti-spam legislation goes into effect on July 1, but there's still a lot of confusion about what that means for not-for-profi t organizations. Charities and non-profi ts fall under the same legislation as private businesses — and are subject to the same penalties, which are hefty. But many non-profi ts don't have the same resources or sophisticated technology as private businesses and rely heavily on volun- teers, so the administrative burden and cost of compliance is expected to be signifi cant. Canadian Anti-Spam Legislation — which many consider to be the toughest of its kind in the world — was developed to limit the ability of companies to send spam and prohibit unwanted downloads of pro- grams onto people's computers. Commer- cial electronic messages are defi ned as any communication that involves a sale or fee. • First, organizations need to track how they collect e-mail addresses. Second, they need to track the date at which their relationship with a person or business ends. "As of 2017, you will only be able to send an e-mail arising from that relationship two years after the relationship ends," says Norton Rose Fulbright's Carron. • Organizations need to ensure — except for limited exemptions — that they include contact information and an unsubscribe mechanism that meets the requirements of the act. That unsubscribe mechanism must be provided in the same format in which the message was sent (such as in an e-mail). • If they're sending the message on behalf of someone else, they need to identify that person and indicate their contact information, unless the person is strictly a service provider for the sole purpose of sending e-mail messages (such as the Liberal Party of Quebec sending an e-mail on behalf of the Liberal Party of Canada). • The unsubscribe mechanism must be valid for 60 days after sending the message. If someone asks to be unsubscribed, the organization has 10 days to do it. CASl tackles spam, but creates compliance burden for non-profi ts. BY VAWn HiMMelSBACH

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