Indefinite Delay of Private Right of Action Under Canada’s Anti-Spam Legislation

Canada’s Anti-Spam Legislation (CASL) will continue without a private right of action for the time being. On June 7, Canada’s Minister of Innovation, Science and Economic Development announced that the pending private right of action under CASL would be indefinitely delayed. In a nod to concerns expressed by covered entities, the Minister wrote, “Canadians deserve to be protected from spam and other electronic threats so that they can have confidence in digital technology. At the same time, businesses, charities, and other non-profit groups should have reasonable ways to communicate electronically with Canadians. We have listened to the concerns of stakeholders and are committed to striking the right balance.” As we wrote prior to the July 1, 2014, implementation of parts of the law, the private right of action was originally set for a delayed effective date of July 1, 2017, in order to give covered entities three years to better understand the law before being exposed to potentially massive class actions. As originally passed, CASL would have given individuals the right to bring an action for damages and a statutory penalty of $200 per violation (not to exceed $1,000,000 for each day on which an offence occurred).

Meanwhile, the three-year grace period for implied consent based on an existing business relationship formed before July 1, 2014, will come to a close on July 1, 2017. Now, as with any business relationship formed after July 1, 2014, businesses can only rely on such existing relationship for implied consent if less than two years has passed between when the recipient last bought or leased something from the business and when the commercial electronic message is sent (or six months in cases where the existing business relationship is based on an inquiry sent from the recipient to the business). If neither of these requirements is satisfied, the business must obtain express consent, find another type of implied consent, or remove the recipient from the distribution list.

TIP: It is still important for companies that send commercial electronic messages in Canada to review the consents and customer contact history for recipients in a distribution list to comply with CASL.