Clarifications – and a New Name – for CASL

This will not be news to organizations that have been grappling with Canada’s Anti-Spam Legislation (CASL) compliance over the last several years – but CASL requires clarification.

We previously wrote about the indefinite suspension of CASL’s private right of action and the statutory review of CASL. Now, the parliamentary committee tasked with the statutory review of CASL has completed its review and confirmed that CASL and its regulations require clarifications to reduce the cost of compliance and to better focus enforcement. In its report, the House of Commons Standing Committee on Industry, Science and Technology (INDU) made various recommendations to do so.

The following are some of the key recommendations:

  • The short title “Electronic Commerce Protection Act” and the acronym “ECPA” should be adopted to replace “CASL” and its unwieldy existing title.[1]
  • The following should be clarified so as to be “clear and understandable” and not to create “unintended costs of compliance”:
    • the definition of “commercial electronic message”;
    • the provisions relating to “implied consent” and “express consent”;
    • the definition of “electronic address”; and
    • the application of CASL to charities and non-profit organizations.
  • The Canadian Radio-television and Telecommunications Commission (CRTC) should increase efforts to educate Canadians about CASL and the technological tools that are available to assist with CASL compliance, and be more transparent about its methods, investigations and determinations of penalties.
  • The impact of implementing the private right of action should be further investigated once changes and clarifications to CASL have been implemented – and damages should be based on proof of tangible harm.

Despite the need for clarification, there is a silver lining. INDU’s report notes that since CASL came into force in 2014, the amount of spam originating from Canada has decreased by more than one third.

INDU has requested that the Government of Canada table a comprehensive response to INDU’s report.

As before, we will continue to watch these developments with interest given their significant impact on businesses, charities and non-profits. Despite the review and recommendations by INDU, CASL is law, and organizations and individuals are required to comply with it. Individuals and organizations impacted by CASL may wish to consult with experienced legal counsel in order to minimize the risks associated with non-compliance with CASL. For more information or resources, contact our anti-spam compliance team.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

[1] CASL’s existing title is An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.