Canada’s Anti-Spam Legislation (CASL), c. 23, S.C. 2010

I was lead counsel on the drafting and Parliamentary consideration of the Anti-Spam legislation, which received Royal Assent in December 2010.

The Anti-Spam legislation is a complex interweaving of legislative measures that created a stand-alone act to be administered by the Canadian Radio-television and Telecommunications Commission (CRTC), and significant amendments to PIPEDA, theCompetition Act, the CRTC Act and the Telecommunications Act.

The stand-alone act deals not only with spam, but also with malware, spyware and viruses, as well as router-hacking. Any company that engages in electronic commerce in any form, in the delivery of online computer or software services, or that mediates between the senders and receivers of electronic messages, should be aware of the provision of CASL and its regulations, and ensure that their activities are either not subject to the legislation or are compliant with it. The legislation provides for significant financial penalties and, importantly, a private right of action that permits litigants to recover not only actual damages, but statutory damages that mirror the financial penalties that can be recovered by the appropriate administrative agencies.

Prompt attention to any act of non-compliance with CASL may protect a company from statutory damages and minimise exposure to public law remedies.

PIPEDA does not provide for fines or monetary penalties. However, CASL creates a private right of action where personal information is gathered in breach of federal legislation. Companies in the business of gathering and making personal information available to third parties need to be particularly vigilant in ensuring that their data collection methods are compliant with the amendments to PIPEDA.

The CASL legislation introduced amendments to the Competition Act that extends the prohibition against false and misleading messages to online commercial messages. Previously, electronic messages had been exempt from prohibitions that have long applied to other forms of advertising and telemarketing. Companies engaging in online solicitations need to be vigilant, as the penalties are significant—whether proceeded against by way of regulatory offenses or by way of civil complaint before the Competition Tribunal.

I provide full service for those who seek to be compliant. I offer compliance training and oversight to key employees, as well as representation before administrative agencies that are charged with enforcement of the legislation.

Contact Philip