juin 12 2017

Anti-Spam Legislation: Private Right of Action Provisions Suspended by Government

Deschênes-Hébert Sophie

On June 7, the Government of Canada announced via news release that it was suspending the application of provisions regarding private right of action, which were supposed to come into force on July 1, 2017, for an indeterminate period of time.

These provisions would have allowed any individual allegedly affected by actions or omissions violating the anti-spam legislation to file a lawsuit in a court of law, including, of course, class actions. If the court found that there was in fact violation of provisions regulating unsolicited commercial electronic messages, it could order the payment of the following amounts to the plaintiff: compensation equal to the actual loss or damage suffered or expenses incurred by the plaintiff, up to $200 for each violation for each day, not exceeding 1 million dollars for all violations.

The provisions regulating unsolicited commercial electronic messages came into force nearly three years ago. However, many reports show that companies remain uncertain on how to comply with the law; some are even unaware that requirements exist. The Government therefore decided to suspend “the implementation of certain provisions in Canada’s anti-spam legislation (CASL) in response to broad-based concerns raised by businesses, charities and the not-for-profit sector”.

It is important to note that all provisions of the anti-spam legislation that are already into force remain so on July 1, 2017 and that the Canadian Radio-television and Telecommunications Commission (CRTC) will continue to accept complaints, carry out investigations with regard to the legislation and impose fines. According to some, the CRTC will now be stricter since July 1, 2017 marks the end of the transition period during which organizations had to review their practices to be sure to comply with the law. For example, organizations had up to July 1, 2017 to use the tacit consent of people with whom the organization had business relationships to obtain these people’s express consent. After the cut-off date, if organizations cannot prove that they have obtained the tacit or express consent of their recipients or that their messages are covered by an exemption under the law or its regulations, the organizations must stop sending messages to these recipients and delete the recipients’ data from the organizations’ databases.

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Deschênes-Hébert Sophie
Sophie Deschênes-Hébert
Ms. Deschênes-Hébert advises advertisers and advertising agencies for their campaigns.
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