The Ministry of Innovation, Science and Economic Development has pledged to change Canada's Anti-Spam Legislation (CASL), according to a recent article in Canadian Lawyer. The pledge comes four years after the legislation was enacted and is “in response to a parliamentary committee, which pointed to glaring flaws that were creating confusion for those trying to comply with the law.” To gain insight on the legislation and potential areas for revision, author Aidan Macnab talks to legal experts, including Mike Fekete, National Innovation Leader at Osler and a Co-Chair of the firm’s Technology Practice Group.
“Basically, CASL is well-intentioned legislation that was poorly executed. It is overly prescriptive, overly broad and has penalties that, if applied as written, can lead to disproportionate penalties on companies who are trying to comply,” says Mike. “We advise hundreds of clients with CASL and clients who are very much trying to do everything they can to comply but find the prescriptive rules in CASL to be challenging in day-to-day operations.”
“The definition of commercial electronic message is very broad and rather than making it clear that its messages are promotional or marketing in nature, the statute is drafted in a way that may capture messages that are more information-oriented but have tangential marketing benefits. But it’s not the primary purpose for which the message is sent,” says Mike, who adds that, for example, customer satisfaction surveys, newsletters for customers and recall notifications, although not intended to encourage the receiver to purchase something, can run afoul of the law, which is probably not what Parliament intended.
Canadian Lawyer reports that “the government said it will clarify certain definitions and provisions in the act, including what qualifies as a commercial electronic message, whether business-to-business messaging fits this definition, the definition of ‘electronic address’ [and] the provisions regarding implied consent and express consent,” and it will undergo a further consultation process with stakeholders, in order to adjust the law.
For more of Mike’s insight on CASL, read Aidan Macnab’s full article “Federal government looks to overhaul parts of CASL” in Canadian Lawyer.
