CASL: Three Years In – Looking Back, Looking Forward

By the CMA Advocacy Team

With the recent government announcement that the private right of action (PRA) is being suspended indefinitely and will not go into force as planned on July 1, 2017, businesses can heave a sigh of relief. It was anticipated that the PRA could provide fertile ground for class action lawsuits, especially given the statutory damages allowed for under the law. The PRA would have allowed recipients of an offending commercial electronic message to seek court ordered "compensation in an amount equal to the actual loss or damage suffered or expenses incurred;" plus “up to $200 for each contravention of that provision, not exceeding $1,000,000 for each day on which a contravention occurred.”

The PRA announcement is indeed good news; however, CASL compliance should remain a key priority for anyone conducting electronic messaging campaigns. Looking back at the last three years since CASL went into force, we’ve seen the regulators in full force and marketing tactics necessarily adapting in response.

At the IAPP Symposium last month CMA’s Wally Hill, Canadian Chamber of Commerce’s Scott Smith and Stikeman Elliott LLP’s David Elder presented a comprehensive overview of Canada’s Anti Spam legislation, including the impacts on industry, enforcement actions and what to expect in the future.

Here are some key takeaways:

Enforcement

  • CRTC has been active with respect to enforcement/investigations regarding Commercial Electronic Messages (CEMs) and malware.
  • Govt Spam Reporting Centre established: fightspam.gc.ca and has received 5-6k complaints/week - over 900,000 complaints to date since 2014.
  • Total amount of fines issued to date: over $2,200,000.

Transitional Provisions

  • Implied consents for existing customers were given a duration of three years where the sender had a relationship with the recipient prior to July 1, 2014 and, as part of that relationship, the sender and recipient had communicated through CEMs.
  • On July 1, 2017, these transitional implied consents will expire. Businesses need to prepare for change by seeking to re-engage any customer relationships dormant since July 1, 2014,  andby ensuring that data files will track most implied consents based on the two year existing business relationship rule.

Parliamentary Review

  • July 1, 2017 marks earliest date the Government of Canada can commission the House of Commons Standing Committee on Industry, Science and Technology (INDU) to begin a review of CASL. CMA will be there seeking further improvements to the law.

For more information, see the slideshow presentation.

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Tags: privacy, transitional provisions, private right of action, iapp symposium, parliamentary review, casl