Federal government backs off on private right of action under Canada's Anti-Spam Law (CASL)

Data Protection, Privacy and Security Alert

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Our previous alert about important changes to Canada's Anti-Spam Law (CASL) outlined two developments that were to come into force on July 1, 2017:

  • The end of the transition period under CASL, during which organizations could rely on deemed implied consent for sending commercial electronic messages (“CEMs”) in certain circumstances;
  • CASL's private right of action
  

The Canadian federal government has just issued an Order in Council removing the July 1, 2017 effective date for the private right of action under CASL. The private right of action will therefore not be in effect until the government takes further action to make it so. Whether the private right of action will come into force as currently written, or in an amended form, or not at all, remains to be seen.

The private right of action under CASL is a statutory cause of action under which persons who allege that they are affected by a CASL breach can apply to court for an order against the alleged violator. Given that the potential remedies under the private right of action include statutory damages of $200 per day for each CASL breach, and given the lack of clarity about how CASL’s broad and sometimes unclear provisions apply in practice, many organizations have been concerned about the potential for litigation (including class actions) arising as of July 1, 2017. The decision to postpone the effective date for CASL’s private right of action therefore provides some relief for concerned organizations. 

Transition period still expires on July 1, 2017

It is important to note that the transition or grace period under CASL will still end on July 1, 2017. Therefore, organizations should continue to make efforts to obtain CASL-compliant express consent from individuals for CEMs before July 1, 2017. If your organization is still sending CEMs to recipients in reliance on implied consent, under CASL’s transition provisions, you need to take steps before July 1, 2017 to obtain express consent from those recipients or confirm whether there is another basis on which you can send CEMS. 

Under CASL, a request for express consent must meet certain criteria. Among other things, the request must include a statement of the purpose for the intended CEMs, it must include the required identification and contact information and it must include a statement that consent may be withdrawn.

Resources

We have developed a CASL Resource Centre to assist organizations with CASL compliance. We would also be pleased to speak with you about your organization’s CASL compliance.

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