Canadian Lawyer InHouse

june 2014 26 INHOUSE "There was intense lobbying on the part of not-for-profits to allow this because e-mail is a cheap, efficient way to raise funds," says Christine Carron, senior partner and chairwoman of the Canadian privacy and access to information team with Norton Rose Fulbright Canada LLP. "They're not doing it to make a profit the way businesses are, they're begging for money, so that is perhaps an explanation as to why the regula- tors gave in to that exception." If the CEM is intended to solicit funds for a registered charity or recognized political party, that implies consent and the charity or party is not required to include an unsub- scribe mechanism. If it arises from a recipi- ent's volunteer work at a non-profit, that also implies consent, but the non-profit must still provide an unsubscribe mechanism. Implied consent lasts two years from the time of the last donation or volunteer work or two years from the time when the person quit the voluntary organization. That means non-profits must track their donations and relationships, and then sort their e-mail list by the date of the last transaction or end of the relationship. It gets more complicated, because there's a question of when a message actually turns into a commercial message — and that's where non-profits will need help from legal counsel. TVOntario, a publicly funded educa- tional TV station and media organization in Ontario, is reviewing its express consents and ensuring proper protocols are in place for outbound communications, especially those that would fall under CASL, says Jonathan Lau, in-house counsel with TVO. "Where we differ from the private sector is with a specific regulatory exception from the legislation," he says. When that came out, people thought great, charities are exempt, he adds, but that's a simplified, cursory perspective. As with any legislation, there are always grey areas, so there's a need to clarify — and make everyone aware of — what compliance actually means. "You have to be very care- ful about that. Just because we're a charity, if we're sending out a message we can't just say we're a charity, we're exempt," says Lau. He anticipates there will be a lot of ques- tions about what actually falls under the exemption. In some cases, it could be arguable whether an e-mail is primarily intended for fundraising purposes (it could be an e-mail newsletter update that also asks for donations). Once you get into these grey areas, things get a whole lot more compli- cated for non-profits. TVO may have an easier time than many other non-profits, however, since it already had software in place to keep its database up-to-date. "We want a sticky list," says Lau. A recipient actively selecting to opt-in for future communications helps to create a "stickier" list so the organization isn't '' just because we're a charity, if we're sending out a message we can't just say we're a charity, we're exempt. jOnATHAn lAu, TVOntario '' TIME: EVENT: 12-month, part-time, executive LL.M. for lawyers and business professionals Advance your career to the next level! Learn important legal and business concepts that can be immediately applied to better serve your clients. Explore the implications of real-life cases in an increasingly complex global business environment. Acquire in-depth knowledge of how the law interacts with both the private and public sectors. For more information please contact Jane Kidner, Assistant Dean Professional Legal Education at j.kidner@utoronto.ca http://www.law.utoronto.ca/programs/GPLLM.html or visit our website: UofT-GPLLM-IH-June-14.indd 1 14-04-30 1:15 PM

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