CASL – Government Suspends Private Right of Action

The Government of Canada published today an Order in Council P.C. 2017-0580, indefinitely suspending the effective date of the private right of action under Canada’s Anti-Spam Legislation (CASL). The Precis for the Order in Council explains that purpose of the Order is to delay the coming into force date of the private right of action “in order to promote legal certainty for numerous stakeholders claiming to experience difficulties in interpreting several provisions of the Act while being exposed to litigation risk”.

The Government’s News Release explains that the private right of action is being suspended “in response to broad-based concerns raised by businesses, charities and the not-for-profit sector”, who should “not have to bear the burden of unnecessary red tape and costs to comply with the legislation”. The News Release includes the following statement by the Minister of Innovation, Science and Economic Development:

Canadians deserve to be protected from spam and other electronic threats so that they can have confidence in digital technology. At the same time, businesses, charities and other non-profit groups should have reasonable ways to communicate electronically with Canadians. We have listened to the concerns of stakeholders and are committed to striking the right balance.

The good news is that organizations will not be at risk for lawsuits for CASL violations. This being said, the rest of CASL remains in force and the Canadian Radio-television and Telecommunications Commission (CRTC) can still impose potentially severe administrative monetary penalties for CASL contraventions.

Moreover, July 1, 2017 still marks the end of the special transition rule for implied consent to receive CEMs. Organizations should therefore consider taking steps to convert soon-to-expire implied consents into express consents by sending CEMs (based on implied consents) that request express consents and they should ensure that they have sufficient, reliable records to prove consent to send CEMs.

To read the Canadian Lawyer’s article “Last minute reprieve as feds suspend controversial private right of action provision in CASL” in which I discuss what this recent announcement means for businesses, click here.

This content has been updated on May 2, 2024 at 14 h 57 min.