There is a new law meant to stop, or at least reduce, spam emails. Canada’s Anti-Spam Legislation, or CASL, prohibits people from sending commercial messages without consent of the receiver.
Communication with our members is vitally important, and this new legislation should not impede or discourage CUPE from speaking with its members. Unions are not exempt from the law, but CUPE is confident it does not apply to the vast majority of communications and messages we send to our members every day, because they are not commercial in nature.
To offer further guidance, CUPE’s legal branch has prepared this FAQ. This law wasn’t drafted with unions in mind, so the FAQ tries to predict how it will be interpreted and applied to unions. If you have a questions not covered, please ask your National Representative.
Q: What kind of messages are covered by the law?
Any electronic messages (sent by any means of telecommunication, including a text, sound, voice, image messages, or the content of any website link) that are for the purpose of selling something or promoting commercial activity
This includes offers to purchase, sell, barter or lease a product, goods, services, or land. It includes offers to provide a business, investment or gaming opportunity. It includes advertising or promoting any of those things or a person associated with any of those things
The vast majority of electronic messages that CUPE sends are not commercial. Unless your local is running a business on the side, the typical messages that might be considered to be commercial would be messages to sell tickets for fundraisers, to sell union ware such as T-shirts, hoodies, jackets or hats, or to promote attendance at conferences or courses for which there is a fee.
Q. What if the activity promoted in the message doesn’t make a profit; does the law still apply?
Yes, it applies to anyone who sends a commercial message, whether or not there’s any expectation of profit. As long as the message promotes commercial activity, the law applies.
A word of caution - to be considered commercial, a message doesn’t need to just promote commercial activity as its sole purpose.
For example, if you send out your local newsletter and it contains an ad selling union hoodies, or a link to your local website or to cupe.ca where there happens to be such an ad, you might be deemed to have sent a commercial electronic message. If you do a general mailing to the membership with a number of items enclosed, one of which is a flyer selling fair trade coffee as a fundraiser, you might be deemed to have sent a commercial electronic message.
Q: What if we do need to send a commercial message, are there any exemptions that would apply to unions?
Yes, there are some exemptions:
- Messages from a sender who already has an existing ‘non-business relationship’ with the recipient. (Because of the way the regulations define a ‘non business relationship’ this would cover our members, but probably not Rand formula employees in the bargaining unit).
- Messages regarding employment relationships and benefit plans.
- Messages sent to satisfy a legal or juridical obligation.
- Messages sent within the same or related organization, if it relates to the organization’s activity.
- Messages to raise funds on behalf of a political organization or candidate.
- Messages responding to inquiries or complaints.
Q: What if we send a commercial electronic message and it’s not exempted?
If a message is commercial and not exempted, then we need to consider whether or not we have implied consent. If a member, or a Rand formula member of the bargaining unit, gave us their email address, with no restriction on its use, then we have implied consent. It has to have come from the person themselves, though, not the employer.
Q: Just to be safe, should we be seeking consent from our members and the members of our bargaining units?
No, not necessarily. Consent is only needed to send commercial messages or if you’re concerned that commercial messages may be regularly sent along with regular union communications. Very few of our normal messages would be caught by this legislation, and those that might get caught because the wording of the law is so broad (sales of union ware, courses and conferences etc) would likely be exempted.
For example, if you send a newsletter or correspond with a member or a Rand formula bargaining unit member about a grievance, or about negotiations and there’s a link to cupe.ca or the local website which contains a commercial message, we think the message would be exempted by the ‘employment relationship’ or the ‘legal obligation’ exemption.
If we do send any commercial messages, and they are not exempted, we have implied consent for recipients who are members and for any Rand formula folks who have given us their email address.
There could be an issue though, with Rand formula folks who have not given us their email addresses, so it would be prudent to separate them out onto a different list and to carefully assess anything that goes to them to see if it promotes commercial activity. Or send everything to them on paper by mail, courier or hand delivery. Remember, the law only applies to electronic messages, not to any other form of communication.
In some very specific situations – a commercial message to someone we don’t have implied consent with, seeking express consent is an option. But as we’ve mentioned, this would be a very rare situation for CUPE. If you think a message you are going to send might be considered to be commercial, or have a situation where expressed consent might be necessary, please consult your National Representative, and, if necessary he or she will consult with a Legal Representative.
Q: Shouldn’t we worry about the huge fines?
No. The law does set out heavy maximum fines, but these are for the worst cases of spammers.
A number of factors would need to be considered before any penalty could be ordered. The law says a penalty is to promote compliance, not to punish. They would look at the nature and scope of the violation, any previous violations and any financial benefit obtained from the violation.
Any union message caught violating the legislation would be an inadvertent, limited in scope, and certainly wouldn’t involve any financial benefit. And, if you can show that you exercised due diligence to prevent the violation, you cannot be found to be liable for it, at all. More about due diligence later.
Q: When does the law come into effect?
The law came into effect on July 1, 2014, but not all parts of it apply right away. It has built in time for everyone to put together their contact lists in a way that meets the requirements.
Where a non-business relationship exists on July 1, 2014, which already includes the communication of commercial electronic messages, the law implies consent to continue to receive these messages until July 1, 2017 – unless consent is explicitly withdrawn before then. This applies to our membership, but not to Rand formula folks.
So it would be prudent to look at your lists now, with respect to the Rand formula bargaining unit members, just in case. But you can continue to communicate with your membership exactly as you have been for another three years, even if that includes sending commercial messages. And if you want to seek express consent from Rand formula folks or from your whole membership, you have three years to do this.
As well, although the law provides for a private right of action against anyone who violates the legislation, this too won’t be in effect until July 1, 2017.
Q: Where can I get further information?
Each situation must be considered on a case by case basis.
If you think a message you are going to send might be considered to be commercial, please consult your National Representative, and, if necessary he or she will consult with a Legal Representative.
The important thing to remember is that none of this legislation has been interpreted by the courts yet, so we have no hard and fast information as to how it will be applied. There may be further developments as time goes by. If something does arise, the CUPE Legal Branch will let you know.
As mentioned above, due diligence will be a complete defence against any alleged violations. Here are some things you can do protect yourself and the local:
Review how you communicate with members, Rand formula members of the bargaining unit, allies and others.
Assess whether any electronic messages you send to any of them might be considered commercial.
If so, assess whether they are cover by the anti-spam law or exempted. Speak to your National Representative.
If your messages are exempted, you don’t need to do anything. If not, and you send them with consent (implied or express), make sure they have identifying information and an unsubscribe mechanism.
If you seek express consent, make sure you do it right and with all the appropriate information required.
Make sure you have a spreadsheet or database of your mailing list that lets you track all information relating to implied or express consent – i.e. who is a member and who isn’t, who has consented and when and how they did so.
Have policies in place to ensure that un-exempted commercial messages are not sent without express or implied consent.
Make sure your compliance procedures and policies are recorded and maintained.
Review what you’re doing and developments in the law from time to time and adapt as needed.
Appoint a Table Officer to be responsible for ensuring compliance and to be the ‘go to’ person on anti-spam issues.
When in doubt ask! Call your National Representative.