Canada’s new Anti-Spam Law went into effect on July 1, 2014. We have had several questions from members about the law and its exemptions for registered charities. The regulations provide an exemption for any commercial electronic message “that is sent by or on behalf of a registered charity as defined in subsection 248(1) of the Income Tax Act and the message has as its primary purpose raising funds for the charity.” Some examples of activities that would be exempt include:
- newsletters that promote upcoming fundraising events, even where mention is made of corporate sponsors of those events;
- electronic communications that promote charitable activities that may involve a cost-recovery element (charging participants for materials, for example); and,
- the promotion of events and the sale of tickets by organizations such as those of performing arts or cultural institutions, where the proceeds flow directly to the charity.
- Newsletters and purely informational items are exempt if they do not contain commercial material.
The Government of Canada has created a website with information about the new anti-spam law and its requirements at www.fightspam.gc.ca
Imagine Canada published the following Q&A on the legislation:
The information provided below, while not constituting legal advice, sets out our best policy understanding of the regulations and their requirements, and has been shared with and commented on by the Industry Canada officials responsible for the regulations.
1. Does the law apply to registered charities?
Yes, CASL and its regulations apply to registered charities. However, a number of measures have been put in place to mitigate its effects on registered charities.
2. What kind of exemptions are in place for registered charities?
The regulations provide an exemption for any commercial electronic message “that is sent by or on behalf of a registered charity as defined in subsection 248(1) of the Income Tax Act and the message has as its primary purpose raising funds for the charity.”
3. What does the phrase “raising funds” mean? Is it related to the definition of fundraising that the CRA uses?
“Raising funds” includes not only all activities that fall under the CRA fundraising definition, and which charities report when calculating their fundraising ratio, but also many other activities that raise funds for the organization
Activities which fall under the CRA fundraising definition include:
- soliciting donations;
- tickets to dinners, golf tournaments, and other fundraising events;
- lotteries; and;
- fun runs and similar events.
Activities above and beyond the CRA definition of fundraising include such activities as:
- registered charities offering services to individuals who may benefit, where there is a cost-recovery element (for materials, for example); and,
- organizations, such as arts groups and cultural institutions, promoting ticket sales for upcoming events.
This is not to imply that all commercial activities carried out by charities will be exempt, but if the commercial activity is undertaken to carry out the charity’s mission, and the funds go directly to the charity to support its work, then it likely falls under the exemption.
4. What does “primary purpose” mean? Does it affect newsletters that might have a small notice about an upcoming event, if that’s not the “primary purpose?”
Newsletters would not generally be considered “commercial” to begin with, so would not be affected. (Charities that have paid advertisements in their newsletters will, however, want to clarify their situation with Industry Canada or the CRTC.)
The “primary purpose” provision means that, if the bulk of the message concerns exempt activities (such as seeking donations or selling tickets to an upcoming event), a registered charity could also include some information about non-exempt activities.
5. What can we do to make sure we don’t do anything wrong?
Exempt messages do not have to include an unsubscribe mechanism, but such a mechanism should be included nonetheless. It is good practice, and it also demonstrates due diligence on the charity’s part.
Charities should also, particularly if sending messages about activities that do not fall within the CRA fundraising definition, include their charitable registration number in their identifying information. This will make it clear to recipients that the message is from a registered charity, and that funds raised are for the benefit of the registered charity.
If you have specific questions about whether an activity you are engaged in is exempt, you should contact Industry Canada or the CRTC.
CRTC: 1-877-249-CRTC (2782)
Industry Canada: 1-800-328-6189