Canada’s Anti-Spam Legislation (CASL) brings with it new legal violations and penalties, some of which become effective as of July 1, 2014. The Canadian Radio-television and Telecommunications Commission (CRTC), the Competition Bureau and the Office of the Privacy Commissioner of Canada will have new enforcement roles with respect to these violations and penalties, in the following areas:
CRTC: spamming, traffic rerouting (altering transmission data without authorization); malware (installation of “computer programs” without consent)
Competition Bureau: fraud (false and misleading representations online, e.g. websites and addresses)
Office of the Privacy Commissioner: harvesting (using computer system to collect addresses without consent); invasion of privacy (unauthorized access to computer system to collect personal information without consent).
On January 23, 2014, the Competition Bureau announced that it had entered into a memorandum of understanding (MOU) with the Office of the Privacy Commissioner of Canada and the CRTC the regarding the implementation of their mandates under CASL. The MOU is dated October 22, 2013.
Nature of the MOU
The MOU fleshes out the already detailed CASL provisions on “consultation and disclosure of information” among the agencies, and with foreign states. The provisions of CASL itself, and the requirements of the MOU, suggest that all concerned are aware that coordination will not be an easy task. For example, CASL requires the agencies to provide the Minister of Industry with “any reports that he or she requests” on how they are co-ordinating efforts on their mandated areas. The MOU requires agency officials to meet “at least quarterly” to discuss enforcement activities and any other matters “of mutual interest” relating to CASL.
While the MOU is not intended to be legally binding or enforceable by the courts, it does represent these three agencies’ agreement on how they intend to co-ordinate their responsibilities. Among other things, that will affect how each agency’s staff will approach their enforcement activities on the ground.
Each agency will notify the others with respect to enforcement activities – including the conduct under investigation and CASL provisions at issue – that “may potentially affect” the others’ interests under CASL.
Enforcement Cooperation, Coordination and Information Sharing
The agencies will consult with each other, and may share information related to their enforcement activities. Where those activities potentially overlap, they will “seek to coordinate their efforts”, whether jointly or alongside one another. The agencies will also coordinate involvement in information requests and arrangements with foreign agencies. Once the Private Right of Action (PRA) becomes effective as of July 1, 2017, when an agency is informed of a PRA initiated by a third party, that agency will notify the others.
Criminal Law Enforcement by the Commissioner of Competition
The Commissioner of Competition has authority under CASL to pursue enforcement activities under CASL’s criminal provisions. Under the MOU, the Commissioner is to notify the other agencies where a decision has been made on that front. That will in turn halt any cooperation and information sharing among the agencies on that enforcement activity.
Competing interests and Confidentiality
The MOU is not intended to override an agency’s obligations under existing laws, including the Access to Information Act. This extends to sharing information. Agencies will make “best efforts to share what information they can, consistent with their interests and legal obligations”. The agencies commit to maintaining confidentiality of information received from another agency “to the fullest extent allowed by law”, and will use that information only for enforcement activities under the MOU – unless the agency that provided the information agrees to the use of the information for other purposes.
The MOU is another indication, in a long line of communications, guidelines, and statements, that the implementation process for CASL will be very new territory, not only for stakeholders, but for the enforcement agencies themselves.