The Dixie Chicks Serenade the CRTC on CASL
The weeks went by and spring turned to summer,
And summer faded into fall.
And it turns out he was a missing person
Who nobody missed at all.
That’s the Dixie Chicks saying goodbye to Earl, but it could just as easily apply to the CRTC (Canadian Radio-television and Telecommunications Commission). Cue the banjo.
The CRTC is Canada’s national regulator having responsibility for broadcasting and telecommunications. It decides how badly the cable companies can gouge you for channels you don’t want, how to create competition in the mobile world, and how much Canadian content gets played on Canada’s media. It is also the primary regulator for CASL, Canada’s AntiSpam Legislation.
In parallel to the CRTC is Innovation, Science and Economic Development Canada (formerly Industry Canada), which is responsible for the more technical matters related to this field such as allocation of frequencies.
At its website the CRTC claims it is, “Committed to ensuring that Canadians – as citizens, creators and consumers – have access to a world-class communication system.” We can’t do that if our digital world is polluted with spam, scams and malware, and CASL is supposed to help defend us against those risks.
CASL as a concept is a tremendous way to advance and protect Canada’s digital and analog economies. No one can argue with the idea that we ought to have some federal statutory protection against online scammers, thieves, hackers, ransomware and spammers. Almost every survey of the top business risks for 2018 include some reference to malware / scams / privacy breaches in the top 10.
But, while the theory is clean, the implementation of CASL is anything but. It’s not a business-friendly piece of legislation, and despite the CRTC’s excellent historic public education efforts, is still a relative unknown.
Since the statute went into effect in July, 2014, there have only a handful of substantive decisions from the CRTC. Picking on Rogers Communications, Porter Airlines and Kellogg’s isn’t exactly an attack on the spammers. Meanwhile, every day seems to bring a news item of another data breach, another hack, more ransomware, each of which goes undeterred by the CRTC and ISED.
As part of a statutory review of CASL, ISED held public hearings in the fall of 2017. We submitted a written brief encouraging the regulators to allow the free market to regulate spam (one of the few occasions where “more lawyers!” is the right answer). The CRTC submitted its own brief, which can be read here.
Very few submissions came to the public hearings in support of CASL. The main complaints centre around the extreme difficulties of proving consent, the expiry dates for implied consent, the internal contradictions between parts of the statute, a lack of clarity on enforcement, and the private right of action (PRA).
The CRTC’s submission to ISED contained the usual political blumphus one would expect of a government body making a formal submission to another government body. But it did contain one very interesting statement. The CRTC submitted that, “market-based solutions for CASL compliance exist. It’s up to businesses to use them.” I agree. Outsourced technical solutions are the most efficient means for any business to implement CASL compliance. The best one I know of is based in London, Ontario.
I had a on-the-record phone conversation with the CRTC in September, 2017. I was concerned about ISED having delayed the implementation of the PRA in June, 2017. From my perspective and as laid out in my brief, CASL without a PRA is unenforceable and therefore meaningless to the average Canadian. Businesses have little reason to fear the CRTC, but they are terrified of opportunistic class action litigation lawyers.
In that phone conversation the CRTC told me it was moving on certain matters (which were understandably confidential) and that we should watch for news. That was the end of September. Two months later, all we’ve seen is an update to the Compu-Finder decision, in which update the CRTC reduced its own fine and found (surprise, surprise) it had the constitutional jurisdiction to decide whether CASL contravened Canada’s Charter of Rights and Freedoms. Riveting stuff, indeed.
The CRTC needs to get back in the game. It needs to start taking heads instead of notes. If it doesn’t, it may be sharing a resting place with Earl.
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>