July 1, 2017 marks a significant day for Canada’s marketing community. Businesses communicating electronically in Canada will lose the benefit of Canada Anti-Spam Law (CASL)’s transitional consent provisions. One of the most potentially damaging provisions of the law, the private right of action (PRA), is also scheduled to take effect for the first time.
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 developments in mind:
When CASL was introduced on July 1, 2014, its transitional provisions afforded a three-year grace period for implied consents acquired before the law going into force. How was implied consent determined? Consent 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 (without regard to the two-year qualifying period); and,
- As part of that relationship, the sender and recipient had communicated through commercial electronic messages (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 consent or ensure that they have a transaction that would renew the implied consent. Failure to do so while continuing to send CEMs could lead to significant penalties, or to possibly significant damage awards against organizations 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 receive 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 allowed for under the law.
CASL provides that a recipient(s) 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 “up to $200 for each contravention of that provision, not exceeding $1,000,000 for each day on which a contravention occurred.”
July 1, 2017 is significant in another way – as the third anniversary of CASL taking effect, it marks the date after which the Government of Canada can request that the House of Commons Industry Committee undertake a review of CASL. CMA will participate in this important review by making representations as to how certain aspects of the law could be clarified and improved.
CMA’s Updated CASL Guide
Many members have told us that CMA’s CASL Guide is their golden handbook on the subject. We’ve now updated it to account for the changes coming on July 1, 2017. See here the updated version, a must read!
Do you want to test your knowledge of CASL? Take the CMA Quiz!
We’ll be honest, it’s difficult, but not impossible to pass. The pass benchmark was set to 80% in the recognition that a single infraction can potentially receive a $1,000,000 fine. While many respondents did pass with flying colors, it has been a bit of a journey and only recently have we found that most respondents are getting a solid passing grade. This underscores the need to continue the work to ensure that teams are well prepared for July 1, 2017.