Canada’s Anti-Spam Legislation, or “CASL” as it is commonly known, has not yet entered into force, and is not expected to come into force until late 2013 or early 2014. Nevertheless, it is prudent for higher learning institutions to start preparing now to ensure that they are CASL-compliant prior to its entry into force due to the dramatic impact that this new legislation will have on all organizations that send electronic messages for a commercial purpose.

As reported in our Knowledge Bytes newsletter, CASL is sweeping new legislation that seeks to create a more secure online environment as a means of increasing consumer confidence in electronic commerce in Canada. To do so, CASL will prohibit, among other things, the sending of commercial electronic messages including emails, text messages, electronic messages sent to social networking accounts, sound, voice or image messages, unless the express or implied consent of the recipient has first been obtained (in other words, CASL imposes a permission based or “opt-in” regime).

“The term “commercial electronic message” (or “CEM”) is defined broadly under CASL and includes any electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation of profit. When considering whether an electronic message is a CEM, it is necessary to consider the content of the message, hyperlinks contained in the message which link to content on a website or other database and the contact information contained in the message.”

A recipient’s consent to receive CEMs may be implied in certain limited circumstances, including where there is an “existing business relationship” or an “existing non-business relationship” as defined in CASL, or where the recipient has “conspicuously published” or disclosed their email address. When relying on implied consent in the context of existing business and non-business relationships, it is important to be aware of the dates on which such relationships arose. This is because, in many cases, implied consent will expire after the time periods set out in CASL if express consent is not obtained during this period of time. For example, implied consent may expire within six months or two years, depending on the circumstances.

Pursuant to CASL, an “existing business relationship” may arise from:

1. the purchase of a product, good or service within the two-year period immediately preceding the day on which a CEM is sent to a recipient;
2. an inquiry or application by a recipient within the six-month period immediately preceding the day on which a CEM is sent to the recipient; or
3. a written contract between a sender and recipient of a CEM, if such contract is still in existence or has expired within the two-year period immediately preceding the day on which the CEM was sent to the recipient.

An “existing non-business relationship” arises from:

1. a donation or gift made by the recipient of a message to the sender within the two-year period immediately before the day on which the CEM was sent, where the sender is a registered charity, a political party or organization or person who is a candidate for a publicly-elected office;
2. volunteer work performed by the recipient of the CEM for the sender, or attendance at a meeting organized by the sender within the two-year period immediately before the day on which the CEM was sent, where the sender is a registered charity, a political party or a person who is a candidate for a publicly elected office; or
3. membership, as defined in the regulations, by the recipient of the CEM in the sender, within the two-year period immediately before the day on which the CEM was sent, where the sender is a club, association or voluntary organization as defined in the regulations.

The revised draft Regulations under CASL issued by Industry Canada on January 5, 2013 describe membership as “the status of having been accepted as a member of a club, association or voluntary organization in accordance with its membership requirements” and provide that “a club, association or voluntary organization is a non-profit organization that is organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than profit, if no part of its income is payable to, or otherwise available for the personal benefit of any proprietor, member or shareholder of that organization unless the proprietor, member or shareholder is an organization whose primary purpose is the promotion of amateur athletics in Canada.”

In the higher learning context, it is likely that the following types of electronic messages would constitute CEMs under CASL:

Student Recruitment and Admissions:

• student recruitment communications and messages advertising or promoting new courses available to potential students;

Ongoing Administrative Processes:

• communications with students in relation to academic programs, tuition, parking, food services, housing and other activities that involve fees;
• messages that promote or advertise goods or services (for example, sales or events at on-campus book stores or student union buildings) where there is a charge associated with the good or service;
• advertisements for sporting events, concerts or other student activities or events where there is an admission fee;
• communications with equipment and service providers and other stakeholders; and

Donations and Fundraising:

• communications with alumni, corporations, student groups, associations and foundations seeking donations or promoting sponsorship opportunities.

Because universities, colleges, charities and non-profit organizations are not exempt under CASL, it is recommended that higher learning institutions familiarize themselves with the legislation and their obligations under it, review their internal policies and determine how CASL’s provisions will apply to any activities that involve the use of electronic messages, including email, electronic advertisements and notices, electronic newsletters or bulletins and social media. It is imperative that higher learning institutions obtain the necessary consents from their students and alumni in order to communicate with them on an ongoing basis.

To learn more about CASL, please see our Knowledge Bytes article.