June 30, 2017
The suspension of the private right of action (PRA) under Canada’s Anti-Spam Law (CASL) is welcome news for businesses, Osler partner Adam Kardash tells ITBusiness.ca. In his article, author Eric Emin Wood outlines how under the PRA, organizations (as well as their officers, directors and agents) could be sued by anyone claiming to have been “affected” by an act or omission that violated CASL. Adam, who leads Osler’s Privacy and Data Management Practice Group, explains why this could have exposed companies to potential litigation.
“You wouldn’t have even needed any proof of harm,” Adam tells ITBusiness.ca. “Under the PRA if you had sent, or even permitted the sending of a message, or installed a computer program in violation of the act, you would have been exposed to a potential lawsuit.
“It exposed companies to all sorts of potentially serious and frivolous litigation.”
Adam also explains that CASL can be reviewed, including consultations, after three years, and says businesses should be cognizant of this in order to protect against a future provision similar to the PRA.
“In essence, what the government’s suspension does is that in the interim time period no one can be exposed to lawsuits under private right of action,” Adam tells ITBusiness.ca. “But now it’s our job as a community to carefully review the act and suggest changes so that we don’t have any problems with the act.”
Adam also says there are flaws with CASL in its current form, including the broad range of messaging, which encompasses not only marketing messaging but also transactional and administrative messaging that could provide factual information.
“This makes no sense and is totally confusing for consumers, as nobody would ever consider administrative messages as spam,” Kardash says. “Yet companies who don’t offer an unsubscribe option for these types of messages would be technically violating the statute and therefore face litigation.”
For more information, read Eric Emin Wood’s article “Controversial provision suspended, but CMOs should still comply with CASL” in ITBusiness.ca.