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Is the CASL PRA Delay Bad for Canadians and Businesses?

Peter Clausi has written an interesting article on InvestorIntel about the CASL Private Right of Action delay and what the unintended fallout could be:

With the July 1 date three weeks away, and the prospect of class action litigation against every company not in compliance, companies were finally taking CASL seriously and were sprinting to get Human Resources, Legal, IT and the executive offices working together to remediate the situation. The CASL system was working.

This week, 12 years after that report from its own Task Force, the federal government failed Canadians by derailing its own system. By order in council, the enactment of the PRA has been indefinitely delayed. There is no visibility on when or even if this part of the legislation will become active.

So what’s next? Remember when you were young, and your older sibling got in trouble with mom, then that sibling passed it on and took it out on you. Expect the same to happen here. The CRTC is in our opinion going to ramp up its enforcement efforts and pass on Minister Bains’ insult to Canadian companies. We expect to hear of new enforcement actions by the CRTC under CASL over the next few weeks.

Click here to read the full article

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CASL Private Right of Action Delayed

Last week, by an order-in-council of the Government of Canada, the private right of action provisions in CASL were delayed. There has been mixed reactions to this delay depending on who you talk to, but Fazila Nurani, of Privatech has taken a good look at what this delay means for businesses and how CASL is still effecting them.

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.

Click here to read the full article

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New CASL Deadline Looms

In the May 15, 2017 issue of HR Reporter Sarah Dobson has written up a great piece on the upcoming July 1st deadline when CASL’s private right of action comes into force.

As a class action, there’s a significant amount of money potentially at stake. So that’s caught a lot of people’s attention. So a lot of companies are reviewing their CASL compliance efforts that they’ve put into place one, two, three years ago to make sure they’re actually being followed and their efforts are up to date.”
It’s going to be interesting to see how the tribunal interprets the legislation because it’s possible this right of action can be taken without any proof of damages, relying on the $200 provision, said Antoine Aylwin, a partner at Fasken Martineau in Montreal.
“If the tribunal accepts that principle, we could very well see many class actions taken and it goes fast — when you send an email to 1,000 persons, well, it’s $200,000 per communication, so say you send five, you’re at $1 million, just by the mathematics of it.”

Click here to read the full article as a PDF

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A panel comprised of recently retired GM Canada General Counsel, Heather Innes; current Bell Canada General Counsel, Bill Abbott; and Peter Clausi, General Counsel at GTA Resources and Mining and moderated by Neil Beaton, VP Corporate Development with CASL Cure, gave the CCCA member-audience an overview of issues surrounding the hot topic of the law’s upcoming private-right-of-action evolution which will open up CASL to allow class action suits, alongside the current CRTC regulation.

On July 1, a “private right of action” comes into force, opening the door for plaintiff-side class action lawyers to sue companies for alleged breaches of the law. This changes the game, because up till now companies in breach of the law have only had to answer to government regulators.Heather Innes, who was previously chief privacy officer with General Motors of Canada Ltd., said the regulatory actions have been harsher than most corporate counsel had expected. But they also offer a preview as to how easy it can be for a company to violate the law.

“Even the most sophisticated organization can make mistakes,” Innes told the panel. The regulators mean business, she said. “They are going to fine, and they are going to fine even if people have simply made mistakes.”

Bill Abbott, assistant general counsel and privacy ombudsman with Bell Canada, said that regulatory enforcement has focused on clear violations of the law. He expects class action lawyers to cast a wider net with their claims.

“Private right of action brings an entirely different environment with profit-driven plaintiffs who aren’t restricted by policy,” Abbott said. “Unlike the CRTC, which appears to be avoiding the ambiguous areas, that’s what they play on. That’s where they bring claims.”

Please visit the Financial Post Article for more information.

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More CASL Enforcement

An individual has been fined $15,000 for 10 violations by the CRTC. In an enforcement action, published last week, the CRTC stated:

The Commission imposes an administrative monetary penalty of $15,000 on William Rapanos for 10 violations of section 6 of Canada’s Anti-Spam Legislation. Specifically, Mr. Rapanos sent commercial electronic messages (i) that did not identify the sender, (ii) that did not include information that enables the recipient to readily contact the sender, (iii) without prior consent from the recipients, and (iv) that, in certain cases, did not include a functioning unsubscribe mechanism.

For more information please read this article by Word to the Wise regarding this incident or the original CRTC enforcement action.

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Strap on your Helmet …

Peter Clausi has written a great article about the upcoming troubles that businesses and individuals could face once CASL enter it’s next stage on July 1st 2017.

CASL really has only two key requirements. The first is that you, as the sender of a commercial electronic message (CEM) (including any business email or text), are prohibited from sending that CEM unless you can prove you had prior consent to send it to that person. You have to be able to prove you had prior consent. You can’t email someone to ask for consent to email them.

Second, all CEM’s must be transparent – it must clearly disclose who the sender is and it must include a simple unsubscribe link. This element is fairly straightforward. If you apply some business intelligence, human resources training and forethought, you can comply with this part of CASL.

It all seems simple, doesn’t it.

Whether you like these two elements is not relevant. This has been the law in Canada for several years. It doesn’t matter if you think it’s a silly law or a disproportionate one – this is a law with global exposure, as the CRTC has assumed jurisdiction if the email is sent or received in Canada (just passing through an ISP doesn’t count). Does your business operate outside of Canada but email into Canada on occasion? You’re caught. Are you a Canadian business sending any email outside of Canada? You’re caught too.

But a CRTC isn’t really the problem. The Commission’s limited resources mean you can probably sleep at night without worrying about the CRTC showing up at your office tomorrow. What you should be afraid of is July 1, 2017. Mark that date in your calendar. That’s the day when your company’s breaches of CASL, until then relatively innocuous, can be punished by a private right of action. Anyone to whom you send an email or text will have the right to sue – all they have to prove is that they received your message, and then the onus shifts to you to prove you had prior consent to do so.

That’s what CASL itself and the CRTC’s Enforcement Advisory are telling us.

After you get sued, you will then need to put forward evidence that you had prior consent to send that email. This would be part of the discovery process in the litigation, and since this type of litigation supports class action litigation, your legal bills are going to be astronomical. And if any of the recipients are outside of Canada, watch for creative aggressive plaintiff counsel to figure out ways to trace liability back to that jurisdiction. Double the litigation, double the legal expenses.

Click here to read the full article.