Wednesday, June 07, 2017

Canadian government pulls the plug on the Canadian Anti-Spam Law private right of action

It's official ... the ability to sue for damages under Canada's Anti-Spam Law (CASL) has been put on ice. An order-in-council dated June 2, 2017 repealed the provision of a previous cabinet order that set the commencement of the private right of action as July 1, 2017. Without that provision, the private right of action will not come into effect.

PC Number: 2017-0580

Date: 2017-06-02

His Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to section 91 of An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, chapter 23 of the Statutes of Canada, 2010, amends Order in Council P.C. 2013-1323 of December 3, 2013 by repealing paragraph (c).

The Precis sets out the rationale:

Order Amending Order in Council P.C. 2013-1323 of December 3, 2013 in order to delay the Coming into Force date of sections 47 to 51 and 55 of Canada's Anti-spam Law, which provides for a 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.

This gives Canadian business, government and consumers the chance to take a breath and figure out whether this dumpster fire of a law is the right tool for the job.

CASL's civil right of action to be delayed?

I am hearing from reliable sources that the government has agreed to postpone the civil right of action under Canada's Anti-spam Law. The provisions, that were planned to come into effect on July 1, 2017, would mean a person or corporation affected by a CASL contravention can bring a civil lawsuit against the offending person or entity – and seek remedies including monetary compensation and expenses. The maximum penalties are $200 for each commercial electronic message contravention (to a maximum of $1M/day), and $1M for each day on which a software contravention occurs (CASL’s software sections come into force on January 1, 2015).

Very few people in the legal community and in business are in favour of these provisions, and it would appear that the government has been convinced. When the order in council is published, it will appear in the Canada Gazette.