[co-author: Patrick Keogh – Student-at-Law]
On July 1st, 2017, organizations communicating electronically under Canada's Anti-Spam Law ("CASL" or the "Act") will lose the benefit of the transitional provisions, and will become subject to the coming into force of a private right of action. While some Canadian organizations may have already devoted considerable time and resources to ensuring compliance with the Act, all organizations are encouraged to review their compliance programs with these two developments in mind.
The End of Implied Consent
When CASL was introduced, the Act's transitional provisions afforded a three-year “implied consent” grace period for certain pre-existing relationships. In short, the consent of a party receiving a commercial electronic message (“CEM”) could be implied where the sender:
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had an existing “business relationship” or “non-business relationship” with the recipient prior to July 1st, 2014; and
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as part of that relationship, the parties had communicated through CEMs.
Implied consent has also applied for computer software updates and upgrades, where the computer program was installed on the recipient’s computer prior to July 1st, 2014.
On July 1st, 2017, however, such transitional implied consent will expire, and can no longer be relied upon to send CEMs. Accordingly, it will be critical for organizations currently using such implied consent to obtain additional express or implied consent. Failing to do so may expose such organizations to significant penalties under the Act, including, for example, potential liability under the Act’s then-operative private right of action.
Welcoming the Private Right of Action
July 1, 2017, will also mark the arrival of CASL’s private right of action. This private right of action was delayed coming into force for three years. Once in force this provision will allow those who receive a CEM without giving consent, or who receive a CEM which fails to comply with any of the Act’s technical requirements, and which are not otherwise exempt, to bring legal action against the sender of the message. CASL provides that a recipient of an offending CEM will be able to seek a court order compelling the sender to pay "compensation in an amount equal to the actual loss or damage suffered or expenses incurred"; and up to $200 for each contravention of the "anti-spam" provision under CASL, to a maximum of $1,000,000 for each day on which a contravention occurred.
It is anticipated that the private right of action will provide fertile ground for class action lawsuits.
Preparing for July 1st, 2017
With the transitional consents expiring and the private right of action coming into force, organizations should be taking steps to maintain their CASL compliance post-July 1st, 2017.
