Private Right of Action Under Canadian Anti-Spam Legislation Suspended Indefinitely

On June 7, 2017, the Canadian government announced that it is suspending indefinitely the private right of action provided for by Canada’s Anti-Spam Legislation (“CASL”), which sets forth the country’s regime of disclosures, consent, and unsubscribe requirements for commercial electronic messages and installation of computer programs, which we discuss here.

CASL came into effect in 2014, but its provisions that allow persons alleging they were affected by acts or omissions in violation of the statute to file suit against putative violators were not to take effect until July 1, 2017. However, the Canadian government decided to suspend these provisions in light of concerns raised by businesses, charities, and the non-profit sector. These concerns were significant given that violations found in private suits allow for recovery of actual damages and up to $1 million per day in penalties (though this portion of the damages may be lower, depending on the CASL provisions violated). The suspension is indefinite, as the Canadian government plans to ask a parliamentary committee to review the legislation.

In the meantime, enforcement of CASL by the government remains intact, and can carry significant penalties. The Canadian Radio-television and Telecommunications Commission (“CRTC”) has been active in its enforcement efforts, through various undertakings, notices of violation, and various impositions of monetary penalties. Suspension of CASL’s private right of action provisions does not implicate any suspension of this enforcement, or any of the substantive provisions already in force.