Canada’s Anti-spam Law (CASL) will largely come into force on July 1, 2014, and will be enforced by three regulatory agencies that have, to a certain extent, overlapping enforcement responsibilities.1
On January 23, 2014, the Competition Bureau announced that the commissioner of competition had entered into a memorandum of understanding (MOU) with the privacy commissioner of Canada and the Canadian Radio-television and Telecommunications Commission to clarify the overlapping roles and responsibilities of the three participants. The MOU itself is dated October 22, 2013.2
The MOU covers a number of topics, including notification, enforcement cooperation and information sharing, criminal enforcement, and confidentiality of information.
Notification between parties
The parties have agreed to notify each other if an enforcement activity or investigation may “potentially affect” another participant’s interests. When there are overlapping enforcement activities, the parties will independently consider whether it is in their interest to enforce independently or jointly with one or both other parties. Generally, the parties will seek to coordinate their enforcement activities. When the private right of action comes into force on July 1, 2017, the participants will inform each other when a third party initiates an application or notification under CASL.
When a foreign agency seeks information or assistance, the parties will share the request and determine which participant(s) will be involved in responding.
CASL’s criminal provisions
The commissioner of competition has authority to enforce criminal provisions of CASL. Once the commissioner decides to pursue criminal enforcement actions, all cooperation and information sharing between the MOU participants will stop.
The MOU does not require participants to share information if it would be incompatible with any other legislation, including the Access to Information Act. The participants have agreed, however, that they will “seek to maintain the confidentiality of any information obtained” and will oppose any request by a third party for disclosure as much as possible. Organizations providing information to any regulatory body or agency must carefully consider the scope and content of the information to be provided and ensure all confidential information is clearly identified as confidential before forwarding any information.
The participants to the MOU will meet at least quarterly, and more often as necessary. Because of the overlapping nature of CASL’s regulations, guidelines, and enforcement activities, it is important for the three agencies to communicate their positions clearly so the business community can understand their obligations and options under what is often called the “strictest anti-spam law in the world.”