DMAW P&L Alert – Important July 1, 2014 Deadline Looming

Most charities in the United States market mainly to U.S. Citizens resident in the 50 states.  But our national borders are more porous than one might first suspect.  No, this isn’t a reference to immigration but rather to marketing.  For example, what regulations and laws apply when you send an e-mail message to a prospective donor who happens to be visiting Canada or Mexico or somewhere in Europe when the message arrives?  What if a donor has forwarded their mail to a foreign address, even if only for a month or so?  What about visitors to your website who click on a link and ask to receive more information and supply their e-mail address, but where those visitors are actually resident in another country?  The rules (and penalties) that can be imposed upon you as the sender of information might surprise you.

Most U.S. charity e-marketers are familiar with the U.S.’s CANSPAM law which went into effect in 2003 (although estimates are that less than 1% of messages sent in 2004 were in compliance).  If you aren’t familiar with how CANSPAM applies to your charity messaging, you should be even though messages such as legislative alerts, news updates, and charitable contribution solicitations are exempt.  For example, nonprofit industry best practices still require that you provide a “snail mail” address to contact the sender.

But as of July 1, 2014 what if your message is sent to someone who happens to be in Canada?  Canadian rules have a limited exemption for “messages sent by registered charities which have as their primary purpose raising funds for the charity” but most U.S. charities are not “registered” in Canada.  There is another important exception that may apply and it is “messages sent in response to a request, inquiry or complaint or that are otherwise solicited by the person to whom the message is sent.”  But does that exception only apply to the first response to an inquiry?  Many charities engage in multiple contacts with “inquirers” in order to build rapport leading to a charitable solicitation.

How many U.S. charities use “viral marketing” or “forward to a friend?”  Did you know that if your recipients forward your message to someone who opens the message using a Canadian mail server, you are required to have warned your recipient about Canadian privacy rules?

Without going into a huge number of details – many of which are available at: http://fightspam.gc.ca/eic/site/030.nsf/eng/h_00050.html if you are following normal U.S. best practices (e.g. providing for unsubscribing) you will likely not run afoul of these new Canadian rules.  The point of this is that U.S. charities should note several things:

• Mass marketing by nonprofits is increasingly complex and regulated by a variety of jurisdictions and requires serious attention to “compliance” rules which apply.
• One of our strongest defenses against unjust and unreasonable regulation of nonprofits in the United States is our Constitutional First Amendment right of free speech.  Charitable solicitations have repeatedly been held by the Supreme Court of the United States to be the equivalent of political free speech.
• The U.S. First Amendment and “free speech” rights do NOT apply in other countries.  In places like Belgium, if a local prosecutor doesn’t like what you wrote in an e-mail message or to whom you sent a letter – your organization can have its assets seized and you might have to wait upwards of several years before you get a judicial resolution.
• Being aware of “best practices” is not a static thing.  As various U.S. and foreign rule changes take place, our industry must update our “recommended or best practices” to help avoid entanglement in expensive regulatory compliance or worse (fines and penalties).  Many of us helped draft the “Charleston Principles” to govern nonprofit solicitations by electronic means in the 50 U.S. states.  Yet the overwhelming majority of U.S. state Attorneys General do not officially recognize those voluntary compliance rules and several have indicated they feel free to enforce their state rules which may be more restrictive, despite your honest efforts to comply with the Charleston Principles.
• Don’t, for a moment, think that you are exempt because you are doing good work for your cause.  Your only real defense is to be aware of the regulatory environment in which we all work and to do your best to comply (or challenge) those rules.