Update: CASL Private Right of Action Suspended, But Be Careful, Other CASL Provisions Are Still Alive
By Randy Marusyk and Daniel Lanfranconi, June 26th, 2017
Since our last CASL updated on March 27th, the Canadian federal government announced on June 7, 2017, that it is suspending the private right of action provision in Canada’s Anti-Spam Legislation (CASL). This provision was originally scheduled to come into effect on July 1, 2017. The private right of action provision allows anyone to sue individuals and organizations that violate CASL by either their action or omission. Under CASL’s private right of action, Plaintiffs were able to claim compensatory damages as well as statutory damages. Compensatory damages cover the plaintiff for losses or damages that they have suffered, on the other hand, statutory damages, are provided where no actual harm is proven and can be as high as $1 million per day.
Businesses, charities, and not-for-profit organizations raised concerns that a number of class action lawsuits could result from the private right of action provision. As a result, the federal government suspended the private right of action coming into force and will send this provision to parliamentary committee for review to ensure it balances the individual’s rights with the burden businesses and others will bear as a result of compliance. No date was announced when the committee will render the results of this review.
CASL’s intent is to prohibit businesses and individuals from sending commercial emails to Canadians without their consent. When CASL was introduced on July 1, 2014, it provided a 3-year grace period where implied consent, acquired prior to CASL coming into force, was sufficient. This implied consent must meet two criteria to be valid: the sender had an existing business relationship prior to July 1, 2014 and the sender and recipient had communicated through commercial electronic messages (CEMs) as a part of this relationship. These transitional provisions for implied consent come to an end as of July 1, 2017, and even though the federal government has suspended the private right of action, these other CASL provisions remain in force and are subject to enforcement. As a result, businesses and individuals must obtain express consent and provide unsubscribe methods and electronic communication practices and marketing strategies that comply with CASL.
For more information please contact:
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Daniel Lanfranconi, B.Eng., M.A.Sc., P.Eng. (Elec Eng), M.B.A., (J.D. Candidate), Summer Law Student
T: 613.801.0456
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