By Paul K. Grower and Brynne N. Thordarson
Just over one year ago, on July 1, 2014, Canada’s Anti-Spam Legislation (“CASL”) came into force. (For more background on CASL, please read “Canada's new anti-spam law (CASL) comes into force on July 1, 2014: What does it mean for you and your business?”). The legislation was introduced to purportedly protect Canadians and Canadian businesses from spam. The legislation has compelled organizations across the country to take a look a closer look at how they use technology to communicate and promote their business. Whether CASL has actually assisted in reducing the proliferation of spam is a matter of debate.
Subject to certain exceptions made available by the Act, CASL generally prohibits the sending of “commercial electronic messages” without the recipient’s express or implied consent. A commercial electronic message (“CEM”) is any type of electronic message (emails, text messages, instant messages, etc.) that is intended to encourage the recipient to participate in a commercial activity.
Somewhat frustratingly for those who wish to abide by the legislation, there are three distinct government agencies tasked with enforcement of CASL: the Canadian Radio-television and Telecommunications Commission (“CRTC”), the Competition Bureau, and the Office of the Privacy Commissioner. The CRTC is responsible for assessing and investigating complaints that are submitted to its “Spam Reporting Centre,” as well as issuing fines for violations.
The ambiguous and complex nature of CASL has made it difficult for organizations who are attempting to comply with its provisions, as very little interpretive light has been shed by the enforcement agencies. This is made worse by fact that CASL wields serious teeth, allowing the CRTC to issue Administrative Monetary Penalties (“AMPs”) to organizations of up to $10 million dollars per violation. These penalties are in addition to the negative publicity that arises when an organization is found to have violated the provisions of CASL.
