In advance of the coming into force of Canada's anti-spam law ("CASL"), one challenge for companies seeking to ensure that their practices are compliant with the law is understanding how it will be enforced. Under CASL, by many accounts one of the most stringent statutes of its kind in the world, the Competition Bureau, the Office of the Privacy Commissioner ("OPC") and the Canadian Radio-television and Telecommunications Commission ("CRTC") (together, the "agencies") will share these responsibilities. In late January 2014, the Competition Bureau announced that the Commissioner of Competition had entered into a non-binding memorandum of understanding ("MOU") with the other two agencies to clarify and set out a framework for their shared responsibilities under CASL.
The mandates of the Competition Bureau, the OPC and the CRTC relate to the administration and enforcement of Canadian federal statutes governing competition, privacy, and telecommunications respectively. CASL amends each of these statutes, and the MOU, in turn, elaborates on the provisions of CASL pertaining to consultation and disclosure of information between them.
The stated intention of the MOU is to facilitate "cooperation, coordination and information sharing," with a view to addressing the potential overlap in enforcement activities under the agencies' respective mandates. According to the MOU, the agencies will consult with each other and share information obtained in connection with their enforcement activities under CASL, and in the event of overlapping activities, consider whether to engage in joint or parallel enforcement and seek to coordinate their efforts. The agencies also agree to disseminate to each other any requests for information or information-gathering assistance from a foreign counterpart, and to seek to enter into new foreign counterpart arrangements naming all three agencies where appropriate.
The MOU sets out some limits on this coordination and information sharing. Specifically, the Privacy Commissioner of Canada will share personal information only to the extent necessary in the course of enforcement activities. Furthermore, as the Commissioner of Competition will have authority to pursue enforcement under the criminal provisions of CASL, the agencies will cease all cooperation and information sharing with respect to such enforcement activity once the Commissioner of Competition has notified the OPC and the CRTC of a decision to do so. Finally, none of the agencies will be required to communicate information to the others if doing so would be incompatible with its interests under the legislation it administers or enforces.
The Canadian government announced in December 2013 that most aspects of CASL will come into force on July 1, 2014, including requirements with respect to the transmission of commercial electronic communications. Other requirements relating to the installation of computer programs in the course of a commercial activity will take effect in January 2015, followed by a private right of action in July 2017. As enforced by the Competition Bureau, the OPC and the CRTC, potential penalties of up to C$10 million for organizations will be available under the new legislation.