On November 5, 2018 the CRTC published Compliance and Enforcement Bulletin CRTC 2018-415 – guidelines on the CRTC’s approach to section 9 of CASL. Although the Bulletin comes in response to a CASL decision in the summer involving an ad network, the approach taken by the CRTC has rightfully come as a surprise to the technology sector.
Section 9 essentially addresses contribution to CASL non-compliance without committing the violations directly. Examples given in the Bulletin for aiding, inducing or procuring a violation include providing access to tools or equipment necessary to commit a violation, or giving technical assistance to facilitate a violation. The CRTC stresses strict liability – it is possible for an organization to be held liable and face administrative monetary penalties even if there is no intent to aid a violation, or the organization is unaware that they are facilitating CASL contraventions. The guidance document further states: “Businesses are expected to understand the non-compliance risks associated with the nature of their respective industries and take certain precautionary measures to mitigate those risks, thereby reducing their potential liability under section 9 of CASL.”
Section 9 has thus been interpreted extremely broadly by the CRTC using an unexpectedly high standard, and this Bulletin is coming under scrutiny given the positive onerous obligations on intermediaries that are being read into CASL. It is not at all clear based on the drafting of the law, that this was Parliament’s intention. The Bulletin further states that intermediaries who need to pay particular attention to section 9 include platform providers, ISPs and telecom companies as well as software/app developers and distributors, including joint developers and affiliated organizations!
The Bulletin goes on to provide extremely broad examples of violations, including potential liability for an online app store or hosting provider. Lastly, the CRTC provides recommendations to manage risks such as knowing your clients well by researching their reputation and assessing them regularly. These recommendations are completely out of line with the business model of intermediaries, and it is hoped that the CRTC will clarify their position to avoid the negative impact that this Bulletin could have on the technology sector in Canada.
For assistance with your CASL compliance responsibilities, contact PRIVATECH.