Individuals and organizations will soon be able to pursue a private right of action under Canada’s Anti-Spam Law (“CASL”), and you can be sure class action lawyers are salivating at the prospects.
Currently, CASL is enforced by three federal agencies: (i) the Canadian Radio-television and Telecommunications Commission (“CRTC”), (ii) the Competition Bureau, and (iii) the Office of the Privacy Commissioner of Canada. Beginning on July 1, 2017, Section 47 of CASL will introduce a fourth mode of enforcement: the private right of action. Individuals and organizations will be able to file an application with the courts for a compensation order against one or more persons alleged to have violated CASL.
For many contraventions of CASL under the private right of action, courts may order the offender to pay the applicant up to $1,000,000 for each day on which the contravention occurred. In addition, applicants are entitled to compensation in an amount equal to the actual loss, damage suffered or expenses incurred. CASL explicitly states that the purpose for such orders are to promote compliance with the act.
Now, more than ever, businesses will want to develop programs to ensure compliance with CASL. The CRTC provided guidelines in 2014 to ensure compliance with CASL, recommending that businesses appoint a chief compliance officer and conduct risk assessments to identify potential risks of violation. The CRTC also recommends that businesses develop written policies to mitigate risks of violation and keep records to recognize, investigate and respond to concerns of non-compliance.