Anti-Spam Class Actions and Protection of Consumers

Canada’s anti-spam legislation (CASL),[1] came into effect on July 1, 2014. However, certain provisions including those that provide individuals with a private right of action against businesses engaging in spam practices have not yet come into force.

CASL generally prohibits individuals and businesses from sending commercial email to Canadians without explicit consent. Readers may recall receiving emails leading up to CASL’s debut asking them to opt-in to continue receiving certain electronic communications.

While any reprieve from unsolicited email communications is welcome, private citizens are left with little meaningful recourse in the event businesses continue to send unsolicited emails, or otherwise breach provisions of CASL.

As the government continues to consider the extent to which individuals can directly pursue businesses who subject them to unsolicited email communications, we provide a brief overview of CASL, its enforcement, and the controversial private right of action provisions.

ANTI-SPAM PROTECTIONS

CASL generally prohibits companies from engaging in the following activities:

  • sending commercial electronic messages to email recipients without consent;
  • promoting products or services online using false or misleading representations;
  • collecting personal information by accessing a computer system or electronic device illegally; and
  • collecting or using email addresses via computer programs without consent.

While protection from, and prohibition against, businesses engaging in the above tactics is integral to safeguard individuals’ rights, without meaningful enforcement mechanisms in place businesses will continue to be free to engage in unsolicited email communications.

REGULATORY ENFORCEMENT

There are currently three governmental agencies responsible for enforcing the provisions of CASL:

  • the Canadian Radio-television and Telecommunications Commission (CRTC);
  • the Competition Bureau; and
  • the Office of the Privacy Commissioner of Canada (OPC).

The CRTC and the Competition Bureau have the authority to issue administrative monetary penalties for violations of CASL. The Competition Bureau also has the authority to seek criminal sanctions under the Competition Act[2]. Finally, the OPC has the authority to exercise its powers under the Personal Information and Electronic Documents Act,[3] which includes levying certain administrative monetary penalties.

Aside from the above regulatory bodies, CASL does not currently provide individuals who have been subject to violations of the Act a private right of action against businesses.

While the CRTC, Competition Bureau, and OPC each provide an important role in policing Canada’s anti-spam legislation, the ability for individuals to proactively pursue businesses in violation of CASL is absent from the current version of the Act.

NO PRIVATE RIGHT OF ACTION

The power of individuals, especially when banded together in a “class”, to deter businesses from engaging in certain behaviour is one of the main objectives of class action litigation. Behaviour modification through consumer protection litigation is an effective and efficient means by which businesses can be held accountable for violations and infringements upon the citizenry.

Importantly, CASL already contains provisions to allow individuals affected by a breach of the anti-spam legislation, as well as for certain breaches of the Competition Act and PIPEDA, to apply directly to the court for damages.[4] The provisions were set to come into force on July 1, 2017, however last June the government suspended the implementation of the provisions and has not yet provided details on their expected effective date.

As of this past December, the Standing Committee on Industry, Science and Technology released its report concluding that the Private Right of Action provisions required further clarification before they could be ultimately put into force.[5]

As currently drafted, the impugned provisions allow for damages awards of up to $1,000,000 per day for certain violations.[6] The provisions also contain no requirement that harm be proven. As such, statutory damages could be awarded from merely receiving a commercial email, absent any demonstrable harm.

While it may be the case that the private right of action provisions require further refinement before coming into force, it is integral that individuals be provided with the ability to pursue violations of CASL on an individual basis, outside of the CRTC, Competition Bureau, and OPC.

Businesses should take note. When the private right of action provisions do come into force, it will be incumbent to have experienced counsel in place to advise on anti-spam practices, ensure compliance with CASL, and respond to potential litigation as a result. With awards upwards of $1,000,000 per day, one cannot be too careful in ensuring compliance with CASL.

By: David Cassin

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[1] An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, SC 2010, c 23 [CASL].

[2] RSC, 1985 c C 34.

[3] SC 2000, c 5 [PIPEDA].

[4] CASL ss 47-51.

[5] Canada’s Anti-Spam Legislation: Clarifications are in Order, Report of the Standing Committee on Industry, Science and Technology, December 2017, <http://www.ourcommons.ca/DocumentViewer/en/42-1/INDU/report-10>.

[6] CASL s 51.

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