Every new form of analogue or digital communication adds some value in capability and/or reach in personal and business interactions. However, each of these communication media is also potentially subject to abuses. These abuses can range from minor annoyances to outright fraudulent behavior and appropriate legislation must therefore be enacted and enforced if the necessary protections and regulations do not already exist. Such was the case for the enactment of Canada’s anti-spam legislation ("CASL"), which first came into effect on July 1, 2014. Notably, one key aspect of this legislation has not yet come into effect but will do so on July 1, 2017. This is the provision that will grant individuals and organizations a private right of action in court against those whom they allege have violated the law. To help put this in perspective, it is helpful to review a few key aspects of this legislation. CASL is an anti-spam law that applies to all electronic messages (email, texts, messages on social networks, etc.) that organizations send while undertaking commercial activity. A core premise of the legislation is that the recipients of such messages must give consent before these messages can be sent. CASL was passed in December 2010 and came into force on July 1, 2014 with the hope of balancing the protection of Canadians who use electronic messaging and the right of responsible businesses and organizations in Canada to conduct electronic business and compete fairly in a changing global market. Two laudable goals but certainly not without potential friction as demonstrated by the reaction to the legislation since its inception. The legislation in general focuses on electronic communication issues but has evolved to include other aspects of computer related wrongdoing (such as set out in the anti-malware provisions of the legislation, enacted on January 1, 2015). In general, CASL does the following:

• It prohibits the sending of commercial electronic messages without the recipient's consent;
• It forbids the altering of data during transmission so that messages can be redirected to a different destination without permission;
• It restrains the collecting or using of electronic destinations that have been harvested by computer programs without consent;
• It prohibits the installation of software programs without the computer owner's consent;
• It prevents the collection of personal information on a computer in violation of federal law; and
• It constrains the use of false or misleading online representation of products and services.

As mentioned above, the next stage of CASL comes into effect on July 1, 2017 when a private right of action comes into effect. This will allow any individual or organization to commence a legal action on the grounds that another party may be in non-compliance with the provisions of CASL. These private rights of actions are laid out in sections 47 to 51 and section 55 of the legislation, and allow individuals and organizations to seek actual and statutory damages in civil court. To date the law has been enforced by three government agencies: The CRTC, the Competition Bureau and the Office of the Privacy Commissioner. Given that the actions of these three bodies to date has been relatively limited, and given the breadth and scope of the regulations, it is clearly time for businesses, if they have not already done so, to closely review their current practices and procedures in regard to their communications and software to ensure they comply with all of the regulations. Moreover, while on the surface the fundamental requirements of consent, identification, and unsubscribe mechanisms in communications may seem straight-forward, Canada’s regulations in this area are arguably the most onerous in the world, with many areas being broad and complex and, to date, untested. With respect to a private right of action, for certain violations, the court can order compensation for an applicant’s actual damages suffered as well as monetary payments that can include $200 per contravention and up to $1 million dollars per day that the conduct occurred.

About the Author: Connor is an associate practicing in the Regina office.

About McKercher LLP: McKercher LLP is one of Saskatchewan’s oldest, largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made our firm rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2017). Integrity, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions. This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.