Feds Fail Canada on CASL
The law of Canada since 2014, Canada’s AntiSpam Legislation was intended to clean up Canada’s digital highways by empowering the owner of any email address to control what messages made it through to the inbox. This control was intended to make the overall economy more efficient. The CRTC has been enforcing CASL with a variety of tools including a fine against one company for $1.5 million.
The private right of action under CASL was due to be effective July 1, 2017. Prior articles on CASL and the PRA can be found here and then going back through the hyperlinks.
This PRA was a key component of Canada’s well-thought out strategy in the cyber world. As was written in the Report of the Task Force on Spam in 2005:
There should be an appropriate private right of action available to persons, both individuals and corporations. There should be meaningful statutory damages available to persons who bring civil action.
With the July 1 date three weeks away, and the prospect of class action litigation against every company not in compliance, companies were finally taking CASL seriously and were sprinting to get Human Resources, Legal, IT and the executive offices working together to remediate the situation. The CASL system was working.
This week, 12 years after that report from its own Task Force, the federal government failed Canadians by derailing its own system. By order in council, the enactment of the PRA has been indefinitely delayed. There is no visibility on when or even if this part of the legislation will become active.
The team at the CRTC must be insulted by this political interference. The CRTC has done an effective job of regulation in this space, with one eye always on the July 1 PRA date as a motivating element. With one administrative pen wave, Minister Navdeep Bains gutted all of its hard work in education, lobbying and system-building.
Minister Bains was under pressure from various self-interested lobbying groups whose members failed to get in compliance, despite having years to do so. His decision to give in and indefinitely delay the enactment of the PRA was an abdication of leadership.
So what’s next? Remember when you were young, and your older sibling got in trouble with mom, then that sibling passed it on and took it out on you. Expect the same to happen here. The CRTC is in our opinion going to ramp up its enforcement efforts and pass on Minister Bains’ insult to Canadian companies. We expect to hear of new enforcement actions by the CRTC under CASL over the next few weeks.
The PRA may not be in force but the rest of CASL remains the law of Canada, with the CRTC having incredible enforcement powers including the ability to obtain a warrant enforceable by the RCMP. Don’t let your company be the target of that beating. Get into compliance with CASL by having IT, HR and legal work together under one responsible executive. This is a multidiscipline problem requiring a multi-department solution.
You can’t count on the feds for leadership here so please do it yourself.
Mr. Clausi is an experienced investment banker, executive, director and shareholder activist. A graduate of Osgoode Hall Law School called to Ontario's bar in 1990, ... <Read more about Peter Clausi>