Federal government suspends coming-into-force of CASL’s private right of action
June 7, 2017
BY Kevin Zakreski
Canada’s anti-spam legislation (CASL) prohibits people from sending commercial electronic messages (such as email, text messages, and private social-media messages) to someone unless the sender has: (1) obtained consent, (2) provided identification information, and (3) provided an unsubscribe mechanism. CASL applies to both for-profit businesses and not-for-profit charities and organizations. Contravening CASL’s provisions could leave a person exposed to (potentially) very large administrative monetary penalties.
While the bulk of CASL’s provisions came into force on 1 July 2014, a special enforcement mechanism was only due to come into force on 1 July 2017. This is CASL’s private right of action, which has been described as
allow[ing] individuals and organizations who are affected by an act or omission that is in contravention of the law to bring a private right of action in court against individuals and organizations whom they allege have violated the law. Once into force, the private right of action will allow an applicant to seek actual and statutory damages. Statutory damages may not be pursued if the person or organization against whom the contravention is alleged has entered into an undertaking or has been served with a Notice of Violation.
The order in council was adopted “in response to broad-based concerns raised by businesses, charities and the not-for-profit sector.” To address these concerns “the Government will ask a parliamentary committee to review the legislation, in keeping with the existing provisions of CASL.”
Note that this announcement doesn’t appear to affect another development for CASL which is set to occur on 1 July 2017: the expiry of the transitional rule in section 66 regarding implied consent based on an existing business or non-business relationship.