Significant Changes to CASL Expected

The Parliamentary Committee that reviewed Canada’s Anti-Spam Law (CASL) in the second half of 2017 has issued a Report and recommendations. Consistent with many of CMA’s suggestions to the committee, the Report calls for significant changes to the law, describing current regulations as vague, overly broad and uncertain as to their effectiveness. The Report concludes that “the Act and its regulations require clarifications to reduce the cost of compliance and better focus enforcement. Provisions defining commercial electronic messages (CEMs), consent, and “business-to-business” messages, among others, warrant the attention of the Government of Canada”. It is expected that the government will table a comprehensive response to the report.

Quick Overview of the Law

CASL is intended to prohibit commercial conduct that would impair the reliability and optimal use of electronic means of carrying out commercial activities. The Canadian Radio-television and Telecommunications Commission (CRTC), the Competition Bureau and the Office of the Privacy Commissioner of Canada (OPC) share the duty of enforcing the Act. The law came into force on July 1, 2014. The Private Right of Action (PRA) provision of the Act was scheduled to come into force on July 1, 2017, but was suspended indefinitely.

Key Recommendations of Interest to Business and Marketers

  • Government of Canada should amend the Act.
  • Clarify definition of a ‘commercial electronic message’.
  • Clarify provisions pertaining to ‘implied consent’ and ‘express consent’.
  • Clarify definition of ‘electronic address’.
  • Clarify whether business-to business electronic messages fall under the definition of ‘commercial electronic message’.
  • Revise section 6(6) to clarify whether transactional communications and service messages listed are CEMs.
  • CRTC to increase efforts to educate Canadians, especially small businesses, in order to increase awareness and understanding of the Act.
  • Further investigate the impact of implementing the private right of action, once changes and clarifications have been implemented to the Act and its regulations. Alternatively, damages could be awarded based on proof of tangible harm.
  • More transparency from CRTC regarding the methods, investigations, and determinations of penalties, as well as the collection and dissemination of data on consumer complaints and spamming trends.
  • Rename the legislation’s short name to Electronic Commerce Protection Act (ECPA) instead of Canada’s Anti-Spam Law (CASL), to reflect the broader aim of the legislation.


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