CASL's Private Right of Action Looms Large

Over the past number of years, Canadian businesses have been busy bringing themselves into compliance with Canada's Anti-Spam Legislation (CASL) – one of the toughest anti-spam regimes in the world. CASL establishes an “opt-in” consent-based regime that captures within its scope nearly all commercial electronic messages (CEMs) and the distribution of nearly all computer programs. It applies to essentially every business and organization that either sends messages to or installs computer programs on computing devices located in Canada.

With regular announcements from the CRTC noting well over half a million complaints being received and several major investigations and prosecutions under CASL under their belt, Canadian businesses shouldn't need more motivation to comply with CASL, yet, as of July 1, 2017, the legal provisions granting a “private right of action” to private individuals come into force. This development should cause businesses to take notice. The private right of action will permit a private individual to bring an action (lawsuit) against a sender of a CEM who has not complied with CASL. Considering many businesses regularly conduct business by email and undertake major promotional campaigns – one mistaken email that violates CASL could give its recipients a right to sue the sending business for the breach. Many legal commentators have questioned what the damages of the party receiving the violating email would be and this appears to be an open question at this point. Discussions are already underway in the legal community around the potential for class action lawsuits.

To put it simply, you don't need to be a spammer for CASL to impact important elements of your business and you shouldn't wait to undertake a review of your organization's CASL compliance. For all businesses, whether large, medium or small - it is critical to review your business processes and start developing a comprehensive compliance plan to reduce the risks of prosecution that you presently face and the risk of being sued that lies ahead.