CASL Private Right of Action Delayed

Canada's Anti-Spam Law came into force in July 2014, with various provisions scheduled to come into force on later dates. The Canadian Radio-television and Telecommunications Commission and the Office of the Privacy Commissioner have exercised their statutory enforcement powers with respect to violations of the CASL rules for commercial electronic messages since those rules came into force. However, the threat of civil litigation presented by the private right of action provisions in CASL has concerned many Canadian businesses, and anxiety has increased as the July 1, 2017 coming into force date for those provisions approaches. The recent announcement by the federal government that those provisions will be delayed—to an as-yet undetermined date—will allay the short-term concerns of many businesses, and suggests there is hope for continued discussions with government about refining those provisions of the Act.¹

What You Need To Know

• A 2013 order in council directed that (a) CASL's email consent rules would come into force July 1, 2014, (b) its anti-spyware provisions would come into force January 15, 2015 and (c) the private right of action would come into force July 1, 2017.
• By order in council dated June 2, 2017, the government suspended the private right of action by repealing the provision of the 2013 order that fixed July 1, 2017 as the coming into force date for these provisions.
• The government has also indicated that it will request a parliamentary committee to review the legislation in keeping with the existing provisions of CASL.²
• The government has not repealed the private right of action itself—those provisions remain in the legislation. However, the revised date on which the private right of action will be available has not been fixed.
• This development will defer the flood of litigation, including class actions, that the Canadian business and legal community was anticipating would begin this July.
• The deferral—as well as the request for parliamentary committee review—suggest that the government may be examining the scope and application of the private right of action provisions, with a view to possible amendment of CASL.

Organizations that send commercial electronic messages or install software on other people's computer systems should continue to review and refine their CASL compliance plans, as regulatory enforcement actions continue (and can be costly; as discussed in our earlier bulletin on CASL enforcement here, regulatory penalties have been as high as $1.1 million) and the private right of action may in the future allow individuals to sue for violations of the Act.

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¹ Privy Council Order 2017-0580 https://www.pco-bcp.gc.ca/oic-ddc.asp?lang=eng&Page=secretariats&txtOICID=2017-0580&txtFromDate=&txtToDate=&txtPrecis=&txtDepartment=&txtAct=&txtChapterNo=&txtChapterYear=&txtBillNo=&rdoComingIntoForce=&DoSearch=Search+/+List&viewattach=34498&blnDisplayFlg=1.

² https://www.canada.ca/en/innovation-science-economic-development/news/2017/06/government_of_canadasuspendslawsuitprovisioninanti-spamlegislati.html.