July 1, 2017 saw Canada celebrating 150 years since Confederation, and many marketers breathing a sigh of relief. When Canada's Anti-Spam Law ("CASL") was first introduced, that date was intended to usher in a private right of action, allowing plaintiffs "affected by an act or omission that constitutes a contravention" to seek damages (both compensatory and statutory). But, the federal government thought otherwise. By an Order in Council released June 7, 2017, the Canadian government suspended the private right of action. This last-minute reprieve means that, at least for the time being, those emailing or texting to or from Canada do not have to worry about private litigation from recipients of commercial electronic messages.
A significant concern for marketers industry was that, in spite of best efforts to comply, claims might have arisen over technicalities of the law. For anyone unfamiliar with CASL, the legislation first came into force on July 1, 2014. It imposes strict consent, disclosure and unsubscribe requirements related to the sending of commercial electronic messages and the installation of computer programs. The requirements of CASL can be quite technical. For example, for express consent to be valid, the opt-in statement must contain certain identifying information and a statement that the individual may withdraw consent at any time. Failure to include this information may invalidate the consent, such that future emails sent in reliance upon it could result in a violation of CASL.
Going forward, a Parliamentary committee will review CASL, and no doubt the private right of action will be considered as part of that review process. While the private right of action may no longer be an immediate risk, compliance efforts are not in vain. The Canadian Radio-television and Telecommunications Commission (the "CRTC") continues, unabated, in its investigation and enforcement activity. It has the power, among other things, to impose administrative monetary penalties of up to $10M per violation. So, while the private right of action is off the table, the need for compliance with CASL remains.
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