As mentioned in our April Bulletin, a private right of action for persons alleging they have been affected by a CASL contravention comes into effect on July 1, 2017. Of particular concern is the anticipated groundswell of class actions that are expected to begin shortly after July 1st. As remedies for contravention include compensation for losses incurred, and as well as specific amounts for specific CASL violations, a class action could have a devastating impact on a firm, as well as the officers and directors personally.

As CASL prohibits the sending of commercial electronic messages (CEMs) without consent (including messages to email accounts, social networking platforms, and even text messages to mobile phones), one way to counter this risk is to crystalize your implied client consent into express consent as soon as possible. In particular, it is important that your organization has the infrastructure in place to convert any implied consent, including through the acceptance or click of an email, or some other opt-in mechanism. The ability to obtain express consent and properly document and retain proof of such consent will assist in insulating your firm from any potential liability arising out of the private right of action claims under CASL.