Canada: CASL Private Right Of Action Delayed And Government To Review CASL

CASL in its present form was a big mistake. The private right of action (PRA) which was scheduled to come into effect July 1, 2017 would have compounded the adverse effects of this flawed, overly-broad, indefensible, and likely unconstitutional law. See, CASL's private right of action.

The Government strongly signaled today that it is prepared to fix or at least mitigate some of the excessive elements of the CASL regime. This is something that every sector of the Canadian public including charities, not-for profit and educational institutions, private individuals, small, medium and large businesses, retailers, publishers, financial institutions, technology and telecom companies had been asking for even before CASL came into force. See, Canada's anti-spam law (CASL), too much of a good thing .

The first step is deferring the implementation of the private right of action. The second is a commitment by the Government to a legislative review of CASL.

The implementation of the PRA, at least for now, has been cancelled by an Order in Council published today. It amends Order in Council P.C. 2013-1323 of December 3, 2013 which would have made the PRA come into effect on July 1, 2017. The Precis of the Order in Council describes its purpose as being to "to promote legal certainty for numerous stakeholders claiming to experience difficulties in interpreting several provisions of the Act while being exposed to litigation risk." The Order in Council reads as follows:

His Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to section 91 of An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, chapter 23 of the Statutes of Canada, 2010, amends Order in Council P.C. 2013-1323 of December 3, 2013 by repealing paragraph (c).

The Government also published a press release further explaining the rationale for delaying the implementation of the PRA.

The Government of Canada is suspending the implementation of certain provisions in Canada's anti-spam legislation (CASL) in response to broad-based concerns raised by businesses, charities and the not-for-profit sector.

The provisions, known as private right of action, would have allowed lawsuits to be filed against individuals and organizations for alleged violations of the legislation.

The provisions were scheduled to come into force on July 1, 2017, but have now been suspended.

Canadians deserve an effective law that protects them from spam and other electronic threats that lead to harassment, identity theft and fraud. At the same time, Canadian businesses, charities and non-profit groups should not have to bear the burden of unnecessary red tape and costs to comply with the legislation.

The Government supports a balanced approach that protects the interests of consumers while eliminating any unintended consequences for organizations that have legitimate reasons for communicating electronically with Canadians.

For that reason, the Government will ask a parliamentary committee to review the legislation, in keeping with the existing provisions of CASL.

The press release contains the following statement from Minister Bains:

Canadians deserve to be protected from spam and other electronic threats so that they can have confidence in digital technology. At the same time, businesses, charities and other non-profit groups should have reasonable ways to communicate electronically with Canadians. We have listened to the concerns of stakeholders and are committed to striking the right balance."

Michael Geist claims the deferment of the PRA is the Government "caving to lobbying pressure". Geist, as CASL's staunchest supporter, has consistently failed to recognized that CASL does more harm than good. See, Michael Geist on CASL: flaws not Festivus grievances; Michael Geist's defense of Canada's indefensible anti-spam law CASL. An anti-spam law shouldn't treat all Canadians as spammers and malware purveyors. You should instantly sense something is wrong with a law if it could make kids promoting lemonade stands to their neighbors or trying to get a babysitting job, or a person recommending a dentist to an acquaintance, illegal. The broad and vociferous opposition to CASL, including from people who would benefit from a good anti-spam law, showed that CASL needed the attention of the Government. See, Evaluating the Industry Canada CASL regulations: my submission to the consultation, Will it be illegal to recommend a dentist under Canada's new anti-spam law (CASL)?.

The Government should be congratulated for taking the right steps of both delaying the implementation of the PRA and reviewing CASL. It is good policy to recognize when a law is misguided and good governance to take appropriate steps to rectify it. Doing so with CASL is also fully consistent with the Government's policy of removing red tape and wasteful impediments to growth, promoting an innovative 21st century economy, helping small business, fostering digital commerce, creating rewarding jobs for Canadians, and removing burdens that hurt the competitiveness of Canadians doing business internationally.

While today's events are very positive, Canadians must still remember that CASL is still in force and being enforced by the CRTC. Accordingly, there is still a need for compliance with the law that remains on the books.

For more on CASL see CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline.

First published on barrysookman.com.

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