CASL: A challenge for museums and cultural organisations

CASL: A challenge for museums and cultural organisations

This summer, we were mandated by Montreal’s Museum of Contemporary Art to implement a compliance program.

In addition to the pleasure of working with such a prestigious institution and collaborating with Espace Courbe, the team in charge of the museum’s technology changes, we witnessed first-hand just how much more complex Canada’s Anti-Spam Law is for museums and most cultural institutions than it is for businesses.

Below are some of our findings that, hopefully, can help your organisation improve the effectiveness of your electronic communications, all the while respecting the Canadian Anti-Spam Act.

A law that applies to all

First, let’s demystify a common myth:

Non-profit organisations and charities are NOT exempt from CASL. Compliance applies to all types of organisations.

Many believe that their status as an NPO, or even as a charity exempts them from CASL. This is false! The law applies to all natural and legal individuals and companies who send commercial electronic messages to or from Canada.

Additionally, non-profit organisations, charities and foundations that engage in commercial transactions (such as the sale of tickets, objects or production contracts) are subject to the CASL. Only some of their commercial messages are exempt.

Even municipal governments and Crown corporations such as Hydro-Québec, VIA Rail or Place des Arts must comply. In fact, only the federal and provincial governments are exempt from CASL.

A complexity specific to cultural institutions

The Canadian Anti-Spam Act imposes precise rules regarding the people that we can communicate with electronically. Most companies need to consider two types of relationships: customers and potential customers.

In the case of museums and many other cultural institutions, patrons, members, donors, guests of premieres, as well as volunteers and individuals providing support (past, present, and future) are all potential people with whom we can communicate to.

All these sub-types of customers and potential customers create a complexity, that causes many cultural institutions to limit their communications to only those who have given their explicit consent by completing a website form. This solution may appear simple but it’s costly in the end.

Savvy marketers and organisations know that it takes much less time and money to convince a former patron to return than to attract a new one. Your past invitees, patrons, members, donors, etc. are a gold mine. The good news is that you can profit from this gold mine as the Canadian Anti-Spam Act and its regulations have specific clauses for cultural organisations.

The two-year rule for patrons and members

Paragraphs 10, 13 and 14 of section 10 of CASL allows you to send unrestricted commercial electronic messages to all your customers, that have completed a transaction within the last two years. For patrons or members of a service, this two-year period begins on the end-date of a membership or programming period. This right, of course, becomes null and void if the person has indicated to you in the meantime their refusal to receive such communications from you.

This means that you can contact most of your donors, patrons, and members of the past two years to persuade them to rediscover your exhibitions or programs, even if they have never filled out an explicit consent form. Our experience with several cultural organisations has taught us that former patrons are often the easiest ones to reconquer if approached in the right way. You might be surprised to discover how many of them you can easily reconvert with a series of gradual re-engagement emails.

An exception for soliciting donations

As austerity becomes a dogma to which most of our politicians seem to prostrate, the development and sustainability of cultural organisations increasingly depends on donations made to them directly or through a foundation.

It should be noted that any message whose primary purpose is to raise funds for charity is exempt from Canada’s Anti-Spam Law. So you can send these messages to all your contacts as long as it’s the primary purpose of your message, not a backdoor way of putting your business activities forward.

N.B.: A message inviting the recipient to contribute to the fundraising campaign, may include a reference to your other activities as long as this reference remains marginal. However, if these activities contribute to the organisation’s profits, your message suddenly becomes a commercial message and no longer benefit from the exemption.

Always try to get explicit consent

While the Canadian Anti-Spam Act offers many opportunities to send messages based on implicit consent, every message you send should be seen as an opportunity to seek explicit consent, by inviting people to complete a form (donation, subscription, profile update, etc.) in which the request for explicit consent is present.

Whatever you do, do not send a message asking for explicit consent. Because 1), in certain situations it is illegal to do so, and 2) most of the time these messages get consent rates below 20%. Also, a lack of response or consent could be interpreted as a unsubscribe request and prevent you from continuing to send messages to these people.

Make sure you consent request is well worded

CASL states that consent must be clear, that is to say, the right to send electronic communications is limited to the type of communications to which the recipient has consented to. Many cultural organisations continue to ask for consent concerning their “newsletters”. Worded this way, you are not allowed to send any other type of electronic communication. An easy solution is to change “newsletters” to “electronic communications”.

Transforming threat into opportunity

For many organisations, CASL is perceived as a threat. Nobody wants to be investigated, receive a heavy fine, or be publically shamed by the media. Unfortunately, too many organisations decide to reduce or even worse, stop their email marketing activities altogether. A move that can hurt an organisation financially in the long-run.

Instead, transform this threat into an opportunity. Implementing a compliance program is an excellent opportunity to revise and update your organisation’s electronic communication practices. For most of our customers, this review has allowed them to maintain or increase the number of people they can send commercial messages to, and increase the effectiveness of their communications.

If you want to discuss your specific situation and see what would be the most economical, simple and effective way to make your organisation CASL compliant all the while improving your marketing effectiveness, speak with one of our experts.