Canada's legislation addressing electronic direct marketing (informally known as Canada's Anti-Spam Legislation ("CASL")), which came into force on July 1, 2014, contains a statutory requirement that the legislation be reviewed by a committee of the Canadian Senate, Canadian House of Commons or of both Houses three years after CASL came into force.
This past fall, the House of Commons' Standing Committee on Industry, Science and Technology (the "INDU Committee") was tasked with reviewing CASL. Over the course of approx. 2 months, the INDU Committee held 13 meetings, heard from approx. 40 witnesses and received 29 briefs.
On December 13, 2017, the INDU Committee presented a 38-page report, titled "Canada's Anti-Spam Legislation: Clarifications are in Order", to the House of Commons (the "Report").
The Report sets out 13 recommendations relating to CASL. Some of the recommendations are simple – such as giving CASL an official short title and using the short title in all government guidance, support and enforcement materials. The "Electronic Commerce Protection Act (ECPA)" was recommended.
Many of the recommendations seek clarifications to the legislation, which, despite its consumer protection objectives, has been heavily criticized as unclear, overboard and burdensome for business. For example, the Report states that the INDU Committee would like to see the Government of Canada clarify the definition and/or application of the following: "commercial electronic message", "implied consent", "express consent", "electronic address", which are the core concepts and definitions of the legislation.
Additionally, despite the numerous exceptions and exemptions designed to apply to business-to-business (B2B) messages that were made prior to the coming into force of the legislation in 2014, the INDU Committee believes that clarifying whether business-to-business electronic messages fall within the definition of "commercial electronic message" is important.
The INDU Committee has also recommended that CASL's application to charitable and non-profit organizations be clarified, and that the Canadian Radio-television and Telecommunications Commission ("CRTC"), which is CASL's primary regulator, increase its efforts to educate Canadians (especially small businesses) so there is an improved awareness and understanding of CASL.
A private right of action to bring civil claims (including class actions) under CASL had been planned to come into force on July 1, 2017 before the Government of Canada abruptly suspended the applicable provisions in CASL in June 2017. The INDU Committee has recommended that the impacts of implementing the private right of action be further investigated after changes and clarifications have been implemented to CASL.
The INDU Committee has also recommended that there be more transparency in the methods, investigations and penalty determinations made by the CRTC. Missing from the recommendations is any suggestion that the significant monetary penalties (up to $10 million) provided under the statute require adjustment.
The views of the INDU Committee are best summarized in its own words that are contained in the "Conclusion" section of the Report:
The Act under review is no ordinary legislation. It makes extensive changes to the conduct of electronic commerce in Canada by requiring that individuals and organizations alter longstanding practices. While not knowing the law does not, and will never, excuse its violation, the Act cannot reach its goal without providing further guidance about its substance and its application.
The evidence presented during this statutory review reveals wide differences of opinion on the Act should be interpreted. As a result, the Committee joins its voice to that of witnesses demanding clear, effective, accessible and regularly updated guidance materials from enforcement agencies. Such materials should be designed with their end users in mind and supported by their feedback.
While improving guidance and education should be a priority moving forward, it can only achieve so much. The Act and its regulations require clarifications to reduce the cost of compliance and better focus enforcement. Provisions defining CEM, consent, and "business-to-business" messages, among others, warrant the attention of the Government of Canada. The Government will be in a better position to assess the impact of the coming into force of the private right of action once these clarifications are implemented.
If the Government of Canada takes the recommendations seriously, it could mean significant changes to CASL, and require business to revisit and pay renewed attention to compliance with the complex CASL regulatory framework.