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Government’s CASL Response: Private Right of Action Still on the Table

Reading Time 3 minute read

Privacy and Cybersecurity Bulletin

The Government of Canada has released its official response to the House of Commons Standing Committee on Industry, Science and Technology's report on Canada's anti-spam legislation (commonly referred to as "CASL") entitled Canada's Anti-Spam Legislation: Clarifications are in Order.

The report (discussed in our bulletin "CASL Statutory Review: Further Clarification Required") recommended, among other things, that the Government clarify certain aspect of CASL, in particular:

• the types of messages that are considered “commercial electronic messages” and how administrative, transactional and     business-to-business messages are to be treated;

• the provisions pertaining to “express consent” and “implied consent”; and

• how CASL applies to charities and non-profit organizations.

The report also recommended that clarification of the above matters should be a precondition to the coming into force of the private right of action, along with an investigation into whether any award of damages for breach of CASL should be based on proof of tangible harm.

The Government's response to the committee's recommendations was largely non-committal – citing its intent "to work closely with stakeholders to identify ways to improve the areas that are the object of the Committee's recommendations". Indeed, even the most straight-forward and benign recommendation – that a user-friendly short-form name be adopted for CASL – was met with a commitment only to "assess the benefits versus the costs and potential risks of adopting a new short title for the Act".

One interesting aspect of the Government's response is that it entertains the possible coming into force of the private right of action, which is one of the most contentious aspects of CASL. The Government stated that it would investigate the impact of implementing the private right of action, and would "consider options for its implementation, including whether awards of damages should be based on proof of tangible harm."  Clearly, the private right of action is still under consideration, despite its coming into force being suspended indefinitely in June, 2017. This may come as a surprise to some who assumed that the private right of action was essentially dead. To the contrary, businesses must still be prepared for the possibility of increased exposure to liability for even inadvertent violations of CASL.

Another interesting aspect of the Government's response is its general agreement that the Canadian Radio-Television and Telecommunications Commission should look at how it can be more transparent in its methods, investigations, and determinations of penalties, as well as on the collection and dissemination of data on consumer complaints and spamming trends. Any resulting increase in transparency will be a welcome development for those who are working to assess and mitigate their exposure.

While the Government's response makes no promises, it is nonetheless revealing. Of the 13 recommendations, the Government indicated that it agreed with six, and did not object to the remainder.  We could see new developments (including new guidance materials) and potential amendments to CASL in the future.

For further reading regarding CASL compliance considerations, see the Fasken CASL Survey Report "Bridging the Gaps in Understanding and Compliance"(PDF). 


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