Following the suspension of the coming into force of the provisions creating a private right of action under Canada’s anti-spam legislation1 (“CASL”) in June 2017, the Standing Committee on Industry, Science and Technology (the “Committee”) was mandated by the House of Commons to undertake the triennial review of CASL, pursuant to section 65 of that statute. In December 2017 the Committee submitted its report, entitled “Canada’s Anti-Spam legislation: Clarifications Are in Order”2. This article briefly summarizes certain recommendations made by the Committee in its report.
1. Private right of action
The Committee did not comment on the advisability of implementing a private right of action under CASL. Rather, it recommended to the Government of Canada that it analyze the repercussions of such a right once certain other recommendations are implemented, including clarification and simplification of some of CASL’s provisions, heightening awareness by businesses of CASL’s content and improving the accessibility of information about CASL.
The Committee also suggested that the Government determine whether an award of damages pursuant to a private right of action should be subject to proving tangible harm, which would limit frivolous law suits.
Another proposed measure is to examine how the Canadian Radio-television and Telecommunications Commission (the “CRTC”) could share information regarding the enforcement of CASL with domestic law enforcement agencies. That would allow an increase in the resources available to ensure that CASL’s provisions are being respected.
2. Clarification and simplification of CASL
During oral submissions to the Committee, several divergent views were expressed on the interpretation of CASL, some of which concerned the inclusion of provisions which are already in force in that statute and in the regulations thereunder. The Committee therefore saw fit to suggest that the legislation on spam be first clarified.
The recommendations regarding the simplification of CASL begin with its title. The Committee recommended that the abbreviated title used in the draft bill, i.e. the Electronic Commerce Protection Act, be reintroduced as the short title of the statute.
The Committee also recommends that several definitions and expressions used in CASL be clarified or simplified in order to render them clear and understandable such that they do not engender undue compliance costs. The terms “commercial electronic message”, “implied consent”, “express consent” and “electronic address” are among those targeted by these recommendations. With respect to the clarification of CASL, the Committee recommends that the Government review the exemptions to its application provided for in the regulations, particularly those involving business-to-business communications and those sent by non-profit organisations.
3. Accessibility of information
The Committee further recommends that the CRTC increase its efforts to educate Canadian about CASL’s provisions in order to improve their awareness and understanding of the statute and its regulations and of the technological tools available to assist in complying with the legislation.
The accessibility and quality of guidance materials were particularly criticized by witnesses heard by the Committee. It was pointed out for example that a newsletter regarding the due diligence defence was buried so deep inside the CRTC’s website that it took a lot of time to specialists to find it.
The Committee also proposed that the CRTC and the Government of Canada study and implement solutions to improve the transparency of investigative methods and how penalties are determined, and regarding data on consumer complaints and spamming tendencies.
It will be interesting to see what actions are taken in light of this report, and what regulatory changes are adopted by the Government in an effort to clarify and simplify the anti-spam legislative regime.