The Power of Perspectives

The Canadian Bar Association

Kim Covert

Three pages to storm the CASL

November 20 2017 20 November 2017

There’s more wrong with Canada’s Anti-Spam Law than can be dealt with in a three-page submission. So it is problematic that the House of Commons Committee on Industry, Science and Technology has limited the statutory review of the law in both time and space, three CBA Sections say in their submission.

“The time-limited review by the House of Commons Committee and the three-page limit on submissions is inadequate to address the complexities and challenges of CASL in its current form, and the requirement for a statutory review does not contemplate such a limited process,” says the submission, produced by the Privacy and Access and Competition Law Sections, as well as the CCCA. The Sections advise that further consultation is necessary in order to achieve CASL’s objectives.

The anti-spam law was enacted to protect consumers from spam and other electronic threats, but “its application and enforcement have been largely focused on legitimate businesses doing their best to comply with a new complex legal regime,” the Sections say.

“The current regime unduly restricts commercial electronic messages to the detriment of Canadian consumers, businesses, charities and non-profits. CASL and its supporting regulations are not consistent with the legislative purpose – to protect consumers from unwanted, damaging and deceptive commercial electronic messages.”

Issues raised by the Sections in the submission include:

  • An overly broad and vague definition of “commercial electronic message”
  • Requiring an “unsubscribe” function in informational messages that don’t include a sales or promotional component
  • The lack of clarity around the requirements for installing computer programs
  • The multitude of consent requirements
  • The scope of private right of action for false or misleading representations
  • Lack of guidance with respect to administrative monetary penalties

As well, while the Sections say they respect the CRTC’s efforts to target damaging malware and spyware, they have concerns with the enforcement and oversight powers granted to CRTC staff, and the lack of transparency about how the CRTC decides which cases to investigate.

The Sections support the government’s decision to suspend the private right of action provision pending the completion of the statutory review. “Bringing the PRA into force without clear guidance is premature,” they say.

The Sections also recommend that charities and non-profits be exempt from CASL requirements relating to commercial electronic messages, except for the ID, content and unsubscribe requirements.

“CASL’s complicated compliance requirements represent an inordinate cost and resource burden for Canadian charities and non-profits.”

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