The Power of Perspectives

The Canadian Bar Association

Kim Covert

All in good time: Private right of action provisions in CASL can wait

March 3 2017 3 March 2017

When Canada’s Anti-Spam Legislation was passed nearly three years ago, it contained provisions for private rights action, which come into force on July 1, 2017, as well as a requirement for a statutory review, also scheduled to begin on July 1, 2017.

In a letter to Innovation, Science and Economic Development Canada, the CBA makes a strong argument for holding off on implementing the former until the latter is completed.

“This delay would give the government an opportunity assess the appropriateness of the private right of action provisions in the context of CASL as a whole, and engage meaningfully with interested parties on their experience with CASL over the last three years,” says the letter from the Canadian Corporate Counsel Association, and the CBA National Privacy and Access Law and Competition Law Sections.

“Any areas of concern could then be addressed – through legislative amendments following the review or other means – reducing unnecessary risk to organizations acting in good faith.”

The delay won’t leave anyone in the lurch, the letter says, as a “robust and comprehensive public enforcement regime is in place” and the regulatory bodies that oversee CASL have effectively enforced the law against violations by organizations large and small.

There are a number of areas in CASL where the interpretation of obligations is still uncertain. These may be addressed in the statutory review and there could be a problem if litigation goes ahead with those ambiguities in place, the letter says.

“From a policy perspective, if the private right of action provisions are brought into force before the statutory review is completed, the class action liability risk and interpretive uncertainty could discourage innovative and legitimate electronic commerce activity at the very time when the government is encouraging Canadian business to embrace electronic commerce.”

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