Canada: Wait For It: Government To Clarify Anti-Spam Law – Eventually

Changes may be afoot to clarify the scope of Canada's Anti-Spam Legislation (CASL), improve public awareness of the law's requirements and provide greater transparency with respect to its enforcement and investigative process -- although it would appear that any such changes may be years away.

That appears to be the essential message in the government's recent response to the December 2017 report of the Standing Committee on Industry, Science and Technology (INDU), which had recommended a number of changes and clarifications to the law.

As we reported previously, while stopping short of making specific recommendations as to how to revise the law, the INDU report did make a number of general recommendations to clarify the uncertainty with respect to the interpretation of many of the law's provisions, as well as to avoid overly burdensome costs of compliance.

In its response, the government addressed the material recommendations from the INDU report under four main themes.

Clarification

The majority of the Committee's recommendations (and indeed, the submissions and testimony of interested parties) focused on the uncertainty surrounding the scope and interpretation of a number of threshold definitions as well as some of the fundamental requirements of the law. These recommendations related to such concepts as:

  • The definition of "commercial electronic message", and in particular, its potential application to administrative and transactional messages
  • The definition of "electronic address", such as the scope of its application beyond email and text messaging
  • The requirements respecting the "implied" and "express" forms of consent set out in the Act
  • Clarification of s. 6(6) of the Act, which purports to exclude a number of types of "commercial electronic messages" from the consent requirement of the law, but lists only types of messages that would not seem to fall within the definition of "commercial electronic message"
  • The application of the law to charities and non-profits
  • The application of the law to business-to-business communications

In its response, the government recognized that the clearer the law, the more effective it will be, and indicated that the government's aim is that CASL be as clear as possible, while remaining adaptable and neutral to technological developments. The government also indicated that it will work with stakeholders to identify ways to improve the Act with respect to the concerns raised by the Committee.

Increased education and transparency

The INDU report had recommended that efforts be increased to educate Canadians – and particularly, small businesses – with respect to the interpretation and application of the Act. The report had also recommended that the government consider how the Canadian Radio-television and Telecommunications Commission (CRTC), which enforces CASL, might be more transparent with respect to its approach to investigations and the imposition of penalties.

In its response, the government indicated that it agreed that education and transparency are critical to the efficient operation of the law, and had engaged with the CRTC and other CASL enforcement agencies (which would include both the Office of the Privacy Commissioner of Canada and the Competition Bureau) to explore options to improve knowledge and awareness of the Act. The government also indicated that it would work with the CRTC to determine how that agency might be more transparent with respect to its approach to enforcement and related processes, and how it might improve transparency with respect to the collection and dissemination of data respecting consumer complaints and spamming trends.

Private right of action

The private right of action in CASL, which was originally to come into force on July 1, 2017, was suspended by the government, pending a parliamentary committee review. In its report, INDU recommended that the private right of action remain suspended, and that its implementation be further examined once the amendments recommended in the INDU report have been made.

In its response to the INDU report, the government agreed to investigate further the impact of implementing the private right of action and to consider options for its implementation, including whether awards of damages available there under should be based on proof of tangible harm (as enacted, statutory damages, which need not be proved, were also available).

Sharing of information with domestic enforcement agencies

Finally, INDU had recommended that the government consider how the CRTC might be able to share with domestic law enforcement agencies and cybersecurity partners information respecting the Commission's enforcement of CASL.

In its response, the government agreed with this recommendation, noting a number of initiatives taken to improve information sharing among enforcement agencies, including memoranda of cooperation with foreign authorities and memoranda of understanding with domestic agencies. The government indicated that it would consider how enforcement agencies could effectively share information with other domestic agencies to meet the objectives of ensuring compliance, limiting the negative effects of spam and malware and encouraging the growth of Canada's digital economy.

Conclusion

The government's general support for clarifying and fine-tuning of CASL will be good news for the business community, who have been struggling to interpret and implement the law since they first geared up for the Act's coming into force in 2014. Many of the INDU recommendations were in line with the types of legislative amendments that businesses have long been seeking.

However, it seems unlikely that there will be any revisions to the law in the near future. While the government response provides no explicit indication of the likely timing for any possible CASL reform, the response does suggest that any reform will only be undertaken following extensive research and stakeholder consultations, which suggests a longer time frame before any legislative action might be undertaken. Moreover, many believe that no legislative changes to CASL are likely before the 2019 federal election.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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