July 1, 2017 marks a significant day for Canada’s marketing community. Not only will businesses communicating electronically in Canada lose the benefit of Canada Anti-Spam Law (CASL)’s transitional provisions, but one of the most potentially damaging provisions of the law will be coming into force: the private right of action (PRA).
While many organizations have already devoted a considerable amount of time and resources ensuring compliance with CASL, the risks and potential costs of non-compliance are to grow exponentially because of PRA. In the meantime, it’s critical that organizations review their compliance programs with these two developments in mind:
When CASL was introduced on July 1, 2014, its transitional provisions afforded a three-year grace period for implied consents. Consent of the person receiving a commercial electronic message (CEM) could be implied so long as two criteria were met:
- The sender had an existing business relationship or non-business 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 will no longer be able to rely on these consents to send CEMs and will need to decide when and how to obtain additional express or make some effort to secure a transaction that would renew the implied consent. Failure to do so while continuing to send CEMs could lead to significant penalties, potentially under the new PRA.
Private Right of Action
In part due to pressures from CMA, the PRA provision in CASL was delayed three years from the time the law came into force, in order to allow for a grace period. Starting on July 1, 2017, however, those who receive a CEM without consent, or one which fails to comply with any of CASL’s many technical requirements, will be able to seek legal action against the sender of the message. It is anticipated that the PRA will provide fertile ground for class action lawsuits, especially given the statutory damages.
CASL provides that a recipient of an offending CEM will be able to seek a court order (unless the case is already investigated by a regulator) compelling the sender to pay "compensation in an amount equal to the actual loss or damage suffered or expenses incurred"; and “$200 for each contravention of that provision, not exceeding $1,000,000 for each day on which a contravention occurred.”
CMA launched a CASL Quiz almost one year ago. The Quiz, while difficult, was not impossible to pass – the pass benchmark was set to 80% given the fact that all you need is a single infraction to be hit with a $1,000,000 fine. And many respondents did pass with flying colours, however the average score was just 65%, which underscores the need for organizations to ensure that their teams are prepared for July 1, 2017.
CMA will be hosting a Workshop on February 16 to help ensure that CMA Members are taking the right steps to maintain their CASL compliance programs and avoid hefty fines. Please visit our website to learn more.