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CASL: A Call for Clarity

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Today the Standing Committee on Industry, Science and Technology presented its report on Canada’s Anti-Spam Law (CASL) to the House of Commons, as part of the three-year CASL statutory review.

The report title is telling:  Canada’s Anti-Spam Legislation: Clarifications are in Order.  Having heard 40 witnesses ranging from CRTC counsel and enforcement staff, to small and large businesses and business associations, to consumer protection and privacy experts, the Committee made a strong call for clearer legislation, guidance, and compliance decisions.

The Committee noted that those affected by CASL (for better or worse) disagreed on important issues such as whether CASL has actually reduced spam, and whether the proposed private right of action (currently on hold indefinitely) should be enacted, amended, or scuttled altogether.  However, stakeholders almost all agreed on the need for the CRTC – the government’s principal enforcement agency – to step up with better guidance, in the form of more, and more accessible, interpretation guidelines and decisions.

It is worth noting that 6 of the 13 Committee recommendations expressly called to “clarify” aspects of the legislation or its application.  These recommendations refer to fundamental aspects of the law including what exactly is a “commercial electronic message”, which is the very subject of the anti-spam component of the Act.

Indeed, CRTC staff pointed to inconsistencies and redundancies in the law with respect to core definitions and exceptions.

The Committee appears to have clearly heard how time-consuming, resource-intensive and costly it can be for an organization to implement and operate a CASL compliance program, given both the details and uncertainties involved.  The published decisions and compliance undertakings made publicly available in the past three years have not provided much additional information or certainty.  Various witnesses before the Committee raised concerns that enforcement has focused on “well meaning” organizations that made errors in judgment or implementation, rather than the real “bad actors” responsible for malicious or disruptive electronic messages.

We agree with the Committee that clarifications are in order, particularly (but not only) if the government has any intention of revisiting the private right of action under CASL.

The Committee has requested that the government table a substantive reponse to its report.  We’ll be watching to see how far the government will go to address perceived shortcomings in this regime.  Three years is long enough to assess those shortcomings, and long enough to wait for clarity.