Fate of controversial CASL section unknown – Law Times

Michael Fekete

March 19, 2018

Osler partner Michael Fekete tells Law Times that the private right of action (suspended last June) in Canada’s anti-spam legislation (CASL) “created a perfect storm for class actions.” In her article, author Marg. Bruineman discusses how the controversial section in CASL (which would allow consumer to the private right of action to sue under s. 51 of CASL) is now under review and how critics believed that allowing the provision would have “unnecessarily exposed organizations to class actions.” Michael, Osler’s National Innovation Leader and Co-Chair of the firm’s Technology Group, explains.

“The private right of action in CASL perhaps created a perfect storm for class actions,” Michael tells Law Times.

The article describes how the Standing Committee on Industry, Science and Technology was tasked with reviewing and issuing a report on the private right of action based on a number of meetings and submissions from businesses. The committee concluded that the “legislation and its regulations required clarifications to reduce the cost of compliance and better focus enforcement,” according to Law Times.

“There’s always a concern when you combine statutory damages, broad standing to sue and a prescriptive law because you can find yourself as a defendant in a class action very easily, even if there isn’t significant harm to consumers,” Michael tells Law Times. “And the fact that CASL created those conditions has led the government to reconsider bringing it into force.”

He adds: “Finding a way so that the organizations, the businesses that are directly impacted by spam pursue the bad actors [who purposely defy the anti-spam legislation] does make a lot of sense.”

For more information, read Marg. Bruineman’s article “Fate of controversial CASL section unknown” in Law Times.