A government standing committee has made recommendations for revision of Canada’s Anti-Spam Legislation to provide clarity to organizations, including assisting them in interpreting and applying the law.
The Standing Committee on Industry, Science and Technology (INDU) made 13 recommendations in its report, released last month. The theme of INDU’s recommendations was clarification, says David Elder, who practises communications, competition and privacy law with Stikeman Elliott LLP in Ottawa.
“There is uncertainty and vagueness in the law which makes it difficult [for businesses] to comply; when you combine that with heavy financial penalties, it makes it difficult” for Canadian businesses to market their products and services. Also, Elder told Legal Feeds, “it would be desirable to have more transparency and certainty in terms of the enforcement models.”
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When Parliament enacted it in 2010, CASL amended the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act, and the Telecommunications Act. The duty of enforcing the Act is shared by the CRTC, the Competition Bureau and the Office of the Privacy Commissioner of Canada.
The Act came into force in 2014, and prohibits commercial conduct that would impair the reliability and best use of electronic means of carrying out commercial activities; notably, companies have been penalized for sending “spam” email to individuals.
Following a series of hearings with stakeholders in the fall — witnesses included the CRTC, the Canadian Chamber of Commerce, the Canadian Marketing Association (which Elder represented) and the Canadian Bar Association — the standing committee “pointed out they had heard loud and clear that there is a certain amount of lack of clarity in the law, including a chill on electronic marketing,” says Elder. A number of businesses, including prominent companies such as Rogers Communications and Porter Airlines, have had to pay significant fines for violating the legislation.
“These were companies trying to comply [with the legislation], but inevitably things go wrong: servers act up, things don’t come through,” Elder says. And although affected companies “took immediate steps to comply,” they were typically fined upwards of $200,000, he notes.
Recommendations of the standing committee to amend CASL include:
- to clarify CASL’S definition “of ‘commercial electronic message’ to ensure that the provisions as enacted in the Act and its regulations are clear and understandable for parties subject to the legislation and do not create unintended cost of compliance. In particular, the status of administrative and transactional messages should be clarified”;
- to “clarify the provisions pertaining to ‘implied consent’ and ‘express consent’ to ensure that the provisions as enacted in the Act and its regulations are clear and understandable for parties subject to the legislation and do not create unintended cost of compliance”;
- to increase efforts to educate Canadians, “especially small businesses,” about the requirements of the Act and the technological tools available to them to assist with compliance;
- that the CRTC “be more transparent” regarding how it chooses and investigates complaints, and the penalties it imposes.
Another significant recommendation was that the government further investigate the impact of implementing the private right of action, once changes and clarifications have been implemented to the Act and its regulations. Canada would be one of just a few jurisdictions that allows a private right of action, says Elder, under which anyone who is aggrieved based on a violation of the law can bring an action for damages of up to $200 per day, per incident.
“Not only can they sue for actual damages, but for statutory damages which need not be proved,” says Elder. “There’s real concern there for class actions.”
The majority of the corporate sector thought it was a bad idea to allow private individuals to sue for damages, he adds. The focus of the law "is on the spam piece of it,” yet CASL also covers anti-malware provisions. As malware, and email that is deceptive or fraudulent, typically cause more damage to individual Canadians, “more enforcement there [is recommended by stakeholders] as opposed to some forms of email,” he says.
And the standing committee’s first recommendation? To simply shorten CASL’s formal name — 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 — to the Electronic Commerce Protection Act.