Don’t sue the messenger? CASL’s private right of action coming July 1, 2017

By now most Canadian businesses have had at least some exposure to Canada’s Anti-Spam Legislation (CASL), which came into force in 2014. However, one key aspect of CASL that is still pending will soon expand the impact of the law on non-compliant organizations, potentially resulting in large damages awards.

On July 1, 2017 the private right of action under CASL is set to come into force, which will allow individuals who have received unsolicited electronic marketing to sue the messenger sender.

CASL broadly governs the sending of commercial electronic messages, including traditional SPAM email and many other types of electronic marketing. With some limited exceptions, the law only permits such messages to be sent with the consent of the recipient. It also imposes content requirements on all commercial electronic messages, such as the unsubscribe mechanism. In addition to regulating electronic messages, CASL requires consent to install software programs and updates on individual’s computers.

Businesses that do not comply can been penalized with hefty fines. Since 2014, the Canadian Radio-Television and Telecommunications Commission (CRTC) has imposed fines on several companies for violations of CASL.

When section 47 comes into force this summer, any person will be able to bring a claim against an organization for contravention of the anti-spam or anti-malware provisions of CASL (sections 6-9 of the Act, in particular).  The claimant will be able to seek actual damages, as well as statutory damages. For unsolicited messages, these are $200 per contravention (each message sent), to a maximum of $1 million per day.

By Julia Johnson

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