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.