Canada’s anti-spam law, known colloquially as CASL, which came into force on July 1, 2014, sets out rules for certain types of commercial online communications. It is considered one of the strictest anti-spam laws in the world. Since 2014, there has been a transitional period which allowed, among other things, businesses to rely on an individual’s implied consent to receive commercial electronic messages (“CEMs”).
This transition period is coming to an end on July 1, 2017. After July 1, businesses will be required to have obtained explicit consent of persons to receive CEMS and record keeping obligations are more rigorous. In addition, while currently there are potential administrative monetary penalties of up to $1 million for individuals and $10 million for other persons for breaches of CASL, after July 1, 2017, a new provision of CASL is scheduled to come into force, providing a private right of action for sending non-compliant CEMs, improper collection of electronic addresses using computer programs, and sending or causing to be sent false or misleading representations in an electronic message, among other things.
CASL provides for the personal liability of directors and officers of a corporation if they directed, authorized, assented to, acquiesced in or participated in any of the above violations. As well, employers have vicarious liability for the actions of their employees acting within the scope of their authority. The private right of action allows individuals to sue both corporations and their directors for alleged violations that were previously policed only by the CRTC and other regulators. The CASL private right of action would allow claims for actual loss or damage suffered or expenses incurred, as well as non-compensatory or statutory damages of up to $1 million per day.
These changes suggest how important it is to ensure electronic messaging, including the back office records relating to these, are in compliance. If you have concerns about your electronic messaging systems or want to discuss a compliance audit, give us a call. We would be happy to help.