By an Order in Council released June 7, 2017, the federal government has suspended the private right of action under Canada's Anti-Spam Legislation (or "CASL"). The provisions, which were to come into force on July 1, 2017, would have provided plaintiffs "affected by an act or omission that constitutes a contravention" of CASL the ability to seek both compensatory and statutory damages. The potential exposure for organizations was significant, with the possible damages in certain cases able to reach up to $1M per day. At least for now, that risk is on hold.
For anyone unfamiliar with CASL, the legislation first came into force on July 1, 2014. It imposes consent, disclosure and unsubscribe requirements related to the sending of commercial electronic messages and the installation of computer programs. The law is wide-sweeping, covering messages sent by email, text and even certain social media communications. Even though the law has been in force for three years, many organizations have recently been scrambling to shore up policies and procedures in light of the added risk of potential litigation, including on a class basis. It now remains to be seen whether the private right of action will ever come into force.
A parliamentary committee will review CASL in accordance with the terms of the legislation itself, and no doubt will consider the fate and future of these provisions as part of that process. While the private right of action may no longer be an immediate risk, compliance efforts are not in vain. CASL otherwise continues to be valid law, and the CRTC continues to receive, investigate and enforce alleged CASL noncompliance.
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