Reprieve for small business: CASL

CASL Changes: A Victory for Business Owners

Recently, the federal government announced changes to Canada’s Anti-Spam Law (CASL). The private right to action, which was to come into force on July 1st, 2017, has been suspended.

Background

A few months ago, I wrote an article on Canada’s Anti-Spam Law (CASL). If you are in business and you use email, you should be familiar with this law. The law states that you cannot send commercial emails without the recipient’s permission. A commercial email is one where your company is attempting to elicit business. It doesn’t have to be a “salesy” or “spammy” looking email. For example, if you are in the plumbing business and see a construction site, you may want to email the general contractor. If you have never done business with them, a simple email like: “I was driving by and I noticed your constructions site at 123 Main Street. I am a plumber, and am interested in quoting” would offend the act. Currently, a recipient of an unwanted commercial email can make a complaint to the CRTC. The CRTC has the power to investigate and impose fines. Many small businesses believe they fly under the CRTC’s radar. But, If you think small businesses are immune to the CRTC’s scrutiny, think again.  In a decision released March 9th, 2017, the CRTC imposed a $15,000.00 fine on William Rapanos for sending 58 commercial emails that violated provisions of CASL. So if you or an ambitious staff member decides to venture into the world of commercial emails, do so carefully. You can read more about the act in my previous post.

July 1st, 2017

All the provisions of CASL are currently in force, except one. On July 1st, 2017, the final provision was to come into force. The provision gave individuals a “right to action.” That means that a recipient of an unwanted commercial email could take your business to court after filing a complaint with the CRTC. After trial, if a judge agreed that your emails offended the act, the judge would order damages. While the damages for a few emails would only result in a few hundred to a few thousand dollars, the true cost would be the cost of litigation. Going to court is VERY expensive. Even if a judge found that your emails did not violate the act, you are still out the litigation cost, not to mention the stress associated with court. Larger companies also worried about class action suits. While it can be too expensive for one person to take a company to court for a few hundred dollars in damages, if a thousand email recipients took one company to court, the costs of litigation alone could be astronomical.

The Government Listened

The business community brought these concerns to the government and successfully lobbied to have the provisions suspended. However, the provision is simply suspended for now until a parliamentary review studies the issue. It’s impossible to say with certainty if the review will result in the permanent removal of these provisions from CASL or if it will recommend any changes. But for now, business owners don’t have to worry about lawsuits. That said, the other provisions of the act remain unchanged. You must still obtain consent and keep records. If you don’t, you may end up in the same unfortunate position as Mr. Rapanos.

Disclaimer – Legalese

This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact one of our lawyers at 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).

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