Be Prepared for CASL Private Right of Action in 2017

With the implementation of the Canadian Anti-Spam Legislation (CASL), Canada has one of the most stringent and broad-reaching anti-spam regimes in the world.
Categories: Business Insurance
Sep 13th, 2017 | By: Sean Graham

With the implementation of the Canadian Anti-Spam Legislation (CASL), Canada has one of the most stringent and broad-reaching anti-spam regimes in the world. Since it came into force on July 1, 2014, there have been a few enforcement actions, the most significant being a $1.1 million fine and a warrant.


CASL applies to all commercial electronic messages - e-mails, text messages, instant messages and direct messages via social networks - that encourage participation in a commercial activity. Even messages sent without the intent of garnering a profit are considered commercial electronic messages. It captures all kinds of business communications, far beyond what would typically be considered "spam."

In under a year, on July 1, 2017, the private right of action portion of the legislation will come into effect. Any individual or organization can sue another individual or organization for violating CASL. Every type of organization, from charities and non-profits, small businesses or multinational enterprises, can be subject to millions of dollars in penalties, including directors, officers and agents.

In the case of a breach, the party found responsible can be fined $200 for each instance of it (i.e. a single e-mail sent) up to a maximum of $1,000,000 per day of violation. 

Most organizations do not have the recordkeeping systems in place to prove consent according to CASL and lawyers have differing opinions on the legality of different types of messages and activities. If your organization hasn't already established a formal policy and procedures for complying with CASL, it will become even more critical to do so before private right of action arrives.

The CRTC recently released guidance for keeping records of consent.


For more information and resources, please contact a CapriCMW Risk Advisor.

Source: "CASL’s private right of action" by Barry Sookman (August 29, 2016).

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