An Early Canada (Anti Spam Legislation) Day Gift! CASL Private Right of Action Repealed
June 7, 2017
By Trent Skanes, Associate at McInnes Cooper,
David Fraser, Privacy Lawyer | Partner at McInnes Cooper
On June 7, 2017, the federal government repealed the regulations that would have brought into effect the sections of Canada’s Anti Spam Legislation (CASL) implementing a private right of action – the ability to sue in a civil court for a CASL violation – scheduled to take effect on July 1, 2017. Organizations and individuals are now relieved of this significant non-compliance risk, but not all non-compliance risks: CASL still authorizes significant consequences for individuals and organizations that don’t comply, and the grace period for implied consent still ends on July 1, 2017.
Non-Compliance Penalties. The federal government’s move doesn’t just delay implementation of CASL’s private right of action provisions; it repeals them – though the government can flip the switch back on at any time. But individuals and organizations must still comply because CASL authorizes several penalties for non-compliance beyond the (now repealed) private right of action.
Implied Consent Grace Period Ends July 1, 2017. CASL provided for a transitional period during which senders of commercial electronic messages (CEMs) could rely on “old” implied consent from either existing business relationships, or existing non-business relationships, for three years (July 1, 2014 to July 1, 2017). Implied consent still re-triggers for a two year period every time a receiver does anything that demonstrates the presence of certain types of “existing business relationships” (e.g. contracts, purchase of services, acceptance of opportunities) or for 6 months after receiving inquiries; implied consent is also available when the recipient has disclosed or conspicuously published their contact information, have not indicated a wish not to receive messages and the message is relevant to their business roles/functions. Of course, as a best practice or in cases of uncertainty, senders might still want to send a compliant CEM to their contacts before July 1, 2017 asking for express consent (which never expires)..
Please contact your McInnes Cooper lawyer or any member of the CASL Team @ McInnes Cooper to discuss this topic or any other legal issue.
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