Canadian government suspends right to private right of action under CASL

By Mariane Gravelle June 8, 20178 June 2017

Canadian government suspends right to private right of action under CASL


Under Canada’s anti-spam law, or CASL, new provisions were to come into force on July 1 that would expose non-CASL compliant organizations to lawsuits brought by affected individuals in response to violations. But in a cabinet order dated June 2, 2017, Parliament has halted this this process indefinitely, effectively suspending the private right of action. This decision has been met with mixed reactions.

Lawyer Barry Sookman welcomes the news:

CASL in its present form was a big mistake. The private right of action (PRA) which was scheduled to come into effect July 1, 2017 would have compounded the adverse effects of this flawed, overly-broad, indefensible, and likely unconstitutional law. […]The Government strongly signaled today that it is prepared to fix or at least mitigate some of the excessive elements of the CASL regime. This is something that every sector of the Canadian public including charities, not-for profit and educational institutions, private individuals, small, medium and large businesses, retailers, publishers, financial institutions, technology and telecom companies had been asking for even before CASL came into force.

Canadian Privacy law Blog author David T.S. Fraser seconded that opinion, likening CASL to a dumpster fire.

Michael Geist, a member of the 2005 National Task Force on Spam whose report to the Industry Minister recommended the inclusion of a private right of action, shared a decidedly different opinion:

In [suspending the private right of action], [Innovation, Science and Economic Development Minister Navdeep] Bains blocked important consumer redress for harmful spam and spyware that would have supplemented enforcement efforts overwhelmed by spam complaints. Bains indicated that the statutorily-mandated review of the law, which is required after three years, will be used to assess the law and the private right of action (the Canadian Federation of Independent Business holds out hope that it will be struck down permanently).

He adds:

By caving to lobbying pressure and soundbites do not stand up to even mild scrutiny, Bains has eliminated the ability for consumers to help combat online harms through lawsuits seeking compensation for ransomware payments or other consumer losses. Far from striking a balance, the move will encourage further lobbying and claims of uncertainty as groups hope to parlay the delay into an all-out effort to eviscerate or eliminate the anti-spam law altogether.

While it does afford a certain reprieve, this suspension of the private right of action does not absolve businesses and organizations from all responsibilities under the Act. In a news release, the Canadian Marketing Association cautioned its members that

The PRA announcement is good news; however, CASL compliance should remain a key priority for CMA Members in terms of their electronic messaging campaigns. With the upcoming July 1 expiry of the 3-year transitional provisions for implied consents from the pre-CASL era, Members have three weeks for any final efforts to renew the dated consent from these customers.

It remains to be seen whether the private right of action under CASL ever sees the light of day.

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