In the December 2017 issue of LegalBytes, we advised that the Standing Committee on Industry, Science and Technology (INDU Committee), a committee of the Canadian House of Commons, had released a 38-page report titled "Canada's Anti-Spam Legislation: Clarifications are in Order" to the House of Commons (Report).
In April 2018, the Canadian Minister of Innovation, Science and Economic Development (Industry Minister), on behalf of the Government of Canada, responded to the Report (Government Response).
The Government Response is drafted along the four (4) key themes expressed in the Report.
Clarification of certain definitions and provisions of the Act
The Government Response affirms the INDU Committee's concerns with the Act and its regulations and the desire that the government clarify the definition and/or application of certain terms such as "commercial electronic message", "implied consent", "express consent", and "electronic address". As we noted in December 2017, these are core concepts and definitions of the legislation. Additionally, the Government Response acknowledges that the application of CASL to charitable and non-profit organizations can be clarified, in addition to other parts of the statute.
The government's position is that it intends "to work closely with stakeholders to identify ways to improve the areas that are the object of the Committee's recommendations".
The Government Response also states that "it is the government's aim that the CASL be as clear as possible while remaining adaptable and neutral to technological developments".
However, no timeline or specific action plan is disclosed for achieving these objectives.
Increased education and transparency related to CASL
In the Report, the INDU Committee had recommended that the Canadian Radio-television and Telecommunications Commission (CRTC), CASL's primary regulator, increase its efforts to educate Canadians (especially small businesses) so there is an improved awareness and understanding of CASL.
While agreeing that "education and transparency are critical to the efficient operation of the CASL," the Government Response states its intended next steps only in very general terms:
"The government, while respecting the CRTC's independence as an administrative tribunal, will work with the CRTC to examine how it can be more transparent in the methods, investigations, and determinations of penalties, as well as on the collection and dissemination of data on consumer complaints and spamming trends. We will also explore ways to optimize existing educational efforts and resources to achieve increased efficiency and effectiveness. To this end, the government will seek to leverage existing business relationships that have been fostered in the context of outreach efforts with business and civil society in the contexts of the implementation of the Innovation and Skills Plan."
At this point in time, it remains unclear what the government intends to actually do to improve awareness and understanding of CASL. While it is likely that more details will eventually be provided, the timing of any specific actions is unknown.
Private right of action
Last December, we noted that a private right of action to bring civil claims (including class actions) under CASL had been scheduled to come into force on July 1, 2017, but that the Government of Canada had abruptly suspended the applicable provisions in CASL in June 2017.
The INDU Committee recommended that the impacts of implementing the private right of action be further investigated after changes and clarifications have been implemented to CASL.
The Government Response notes that the government intends to investigate further the impact of implementing the private right of action, and to consider options for its implementation. As for timing and concrete steps, however, the Government Response notes only that a decision with respect to the private right of action "will be part of the broader considerations that the government pursues through consultation with key stakeholders …".
Sharing of information by the CRTC with domestic law enforcement agencies
In the Report, the INDU Committee recommended that the Government of Canada consider how the CRTC can share information relative to the enforcement of CASL with domestic law enforcement agencies.
The Government Response notes that the government agrees with this recommendation, and that it "will consider how enforcement agencies could effectively share information with domestic law enforcement agencies".
The concluding paragraph of the Government Response states, in part, that "The government is committed to facilitating innovation and an efficient marketplace, including in the digital realm, and will endeavour to further consider how to improve CASL to meet these ends."
As with other commitments, the Government Response does not set out a specific timetable, or identify specific next steps for acting on these objectives.
The Government Response does note that the government intends to consult with various stakeholders before proceeding with any changes to CASL.
CASL was originally enacted in 2010, and the anti-spam provisions of CASL did not come into force until July 1, 2014. Some of the delay at that time was attributable to public consultations on CASL's regulations. That experience, together with the non-specific nature of the Government Response, strongly suggests that legislative changes to CASL are not likely to take place in 2018. With a federal election expected in Canada in fall 2019, it is not unlikely that it will be left to a re-elected (or new) government to consider and implement meaningful changes to CASL in line with the INDU Committee report.