Businesses obtain welcome relief from the imminent threat of private lawsuits under Canada’s Anti-Spam Legislation (CASL) as the private right of action, originally scheduled to come into force on July 1, 2017, has been suspended. It is unclear at this point if this right will be repealed entirely or if a new coming into force date will be set.
Under CASL’s private right of action, a person (or persons in the context of a class action) would have had the right to sue a business directly for violations of CASL’s key provisions — namely, those regulating the sending of commercial electronic messages, the alteration of transmission data and the installation of computer programs — as well as certain provisions of the Competition Act (in particular relating to false and misleading electronic messages and locators) and the Personal Information Protection and Electronic Documents Act (regulating address harvesting), that were enacted by CASL. A person affected by these violations could recover actual damages suffered, as well as statutory damages (up to C$200 per breach up to a maximum of C$1-million per day, in most cases), among other remedies. Needless to say, the private right of action would have created significant litigation and class action risks for businesses.
The order-in-council suspending the coming into force date stated that the suspension was made “in order to promote legal certainty for numerous stakeholders claiming to experience difficulties in interpreting several provisions of the Act while being exposed to litigation risk”. The suspension will be well received by businesses that have been struggling to understand and comply with the prescriptive requirements of this legislation.
It is important to remember that CASL otherwise remains in full force and is being actively enforced by the Canadian Radio-television and Telecommunications Commission. Businesses should also be aware that the transitional provision that grandfathered certain pre-CASL “existing business relationships” will end as scheduled on July 1 of this year. Existing business relationships will still create implied consent under CASL, but only for the limited time period prescribed by the legislation (two years or six months depending on the circumstances creating the relationship).