Last week, the private right of action provisions in CASL, that were scheduled to come into force on July 1, 2017, were suspended indefinitely by an order-in-council of the Government of Canada, in response to the lobbying effort and concerns raised by businesses. A coalition that included the Digital Marketing Association of Canada, the Canadian Marketing Association, the Interactive Advertising Bureau and others have been working for a year on delaying the coming into force of the contentious provisions that would have allowed lawsuits to be filed against individuals and organizations for alleged violations of CASL.
I have seen mixed reactions to the announcement – some businesses are thrilled, feeling the pressure is off and they don’t need to worry about the approaching July 1st deadline anymore. Class action law firms are not too happy, particularly those who have been ramping up their own knowledge of the law and the new right to commence a civil suit.
However, I don’t believe the delay of the private right of action is such a relief, and I would warn businesses not to give this more weight than it deserves. It is important to remember that CASL otherwise remains in full force and is being actively enforced by the CRTC – we have witnessed a number of decisions where administrative monetary penalties (AMPs) have been issued against reputable organizations, and businesses of all sizes from the one-man show to the large national operation. Entities should also keep in mind that the transition period that grandfathered certain pre-CASL “existing business relationships” will end as scheduled on July 1st of this year. Existing business relationships will still create implied consent under CASL, but only for the limited time period prescribed by the legislation (two years or six months depending on the circumstances creating the relationship). This means list clean-up is still a top priority for CASL compliance.
In my view, avoiding CASL violations and associated complaints to the CRTC’s Spam Reporting Centre is just as critical as it has been since 2014. As stated by Neil Beaton of CASL Cure, “AMPs are the tip of the iceberg in that they typically represent only about 10% of the actual cost of getting hit with a fine. The conservative cumulative cost of going through a CRTC investigation process is easily 10 times that due to significant external legal fees, as well as internal resources to manage the violation, management costs, IT costs, and the costs of corrective action, audit, reporting, and follow-up.”
So don’t slow down your CASL compliance efforts – get that CASL program in place, ensure your staff are trained, and use tools available in the market to make sure your lists are clean and you’re respecting unsubscribe requests in accordance with the law. The CRTC put the transition period in place to give businesses time to get their house in order – a no-nonsense, ‘you should now know better’ approach to CASL enforcement can be expected this summer and beyond.
For assistance with your CASL compliance efforts, contact PRIVATECH.