Vol. 151, No. 12 — June 14, 2017
SI/2017-31 June 14, 2017
AN ACT TO PROMOTE THE EFFICIENCY AND ADAPTABILITY OF THE CANADIAN ECONOMY BY REGULATING CERTAIN ACTIVITIES THAT DISCOURAGE RELIANCE ON ELECTRONIC MEANS OF CARRYING OUT COMMERCIAL ACTIVITIES, AND TO AMEND THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION ACT, THE COMPETITION ACT, THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT AND THE TELECOMMUNICATIONS ACT
Order in Council Repealing the Coming into Force of the Private Right of Action dispositions of Canada’s Anti-Spam Law
P.C. 2017-580 June 2, 2017
His Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to section 91 of An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, chapter 23 of the Statutes of Canada, 2010, amends Order in Council P.C. 2013-1323 of December 3, 2013 (see footnote a) by repealing paragraph (c).
(This note is not part of the Order.)
The purpose of the Order in Council is to delay the coming-into-force date of sections 47 to 51 and 55 of An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23) [hereinafter referred to as “Canada’s Anti-Spam Law” or “CASL”]. The previous coming-into-force date of these provisions is July 1, 2017.
The Minister of Innovation, Science and Economic Development is the Minister responsible for CASL and has the authority to conduct legislative review of this statute under section 65 of CASL.
The purpose of the Order in Council is to delay the coming-into-force date of sections 47 to 51 and 55 of CASL, which provides for a private right of action, in order to promote legal certainty for numerous stakeholders claiming to experience difficulties in interpreting several provisions of the Act while being exposed to litigation risk.
CASL is a culmination of a process that began with the Anti-Spam Action Plan for Canada launched by the Government of Canada in 2004, which established a multi-stakeholder spam task force chaired by Industry Canada to examine the issue of unsolicited commercial electronic messages. After a process of consultation with stakeholders and the public, the spam task force issued a report in May 2005 examining the spam situation in Canada, and recommended, among other measures, that legislation specifically aimed at combating spam be created.
CASL received royal assent on December 15, 2010.
CASL generally prohibits the transmission of unsolicited commercial electronic messages, the alteration of electronic transmission data and the installation of computer programs (such as malware) without consent among other things. CASL names several agencies to enforce commercial electronic messages and other electronic threats, namely the Competition Bureau, the Office of the Privacy Commissioner of Canada, and the Canadian Radiotelevision and Telecommunications Commission. In addition to a legislative framework to address spam and other electronic threats, such as identity theft, phishing, spyware, malware, and botnets in Canada, CASL gives these enforcement agencies the authority to share information with international counterparts.
CASL is enforced through measures such as administrative monetary penalties (AMPs). CASL also contains provisions which create a private right of action (PRA). The PRA allows individuals affected by a violation of CASL to bring an application before a court to claim compensation for loss or damage suffered or expenses incurred, and statutory damages (except where AMPs have been already imposed). The sections of CASL that provide for enforcement through a private right of action (i.e. sections 47 to 51 and 55) did not come into force immediately. These provisions were delayed to give businesses time to bring their practices into compliance with CASL and to ease their transition to this regulated environment, given many are of the view that it is difficult to adapt. The provisions are currently scheduled to come into force on the same day that Parliament is intended to review the provisions of CASL (i.e. section 65 of CASL). As it is difficult for Parliament to review legislative provisions in the abstract, the postponement of sections 47 to 51 and 55 of CASL is preferable.
There are no financial implications to the Government associated with this Order.
The Department of Innovation, Science and Economic development (ISED) has received letters from stakeholders who wished to express their concern regarding the coming-into-force date of the PRA provisions of CASL. These letters were sent by industry associations and coalitions of business groups, such as the Retail Council of Canada, the Canadian Marketing Association, the Information Technology Association of Canada as well as other stakeholders representing a diversity of industry sectors. These stakeholders identified the ambiguities with CASL as being a principal reason for delaying the coming into force of the PRA. They argued that given that there remains considerable uncertainty as to compliance with CASL provisions, implementing the PRA at this time would only elevate the overall risks and uncertainty with CASL compliance. These stakeholders also argued that the date should occur after the first parliamentary review of CASL, because it is difficult for Parliament to review legislative provisions in the abstract. Furthermore, they submitted concerns that a parliamentary review should take place to fix important concerns regarding CASL before courts of justice could pronounce on them. This would minimize any conflict in interpretation.
ISED has also sought the views and perspectives of CASL’s three enforcement partners, the Canadian Radiotelevision and Telecommunications Commission, the Office of the Privacy Commissioner of Canada and the Competition Bureau. These enforcement partners took no position regarding the proposed change in the coming-into-force date.
Following the reception of letters sent by industry stakeholders, ISED sought the views of other stakeholders such as the Public Interest Advocacy Centre (PIAC), the Coalition Against Unsolicited Commercial Email (CAUCE) and the Canadian Bar Association. A number of these parties submitted their views on the private right of action to us in writing with some parties in favour of delaying the coming into force and others in favour of maintaining the original coming-into-force date. Parties in favour of maintaining the current coming-into-force date argued that the current date represents Parliament’s will with respect to CASL. Furthermore, concerns were expressed that changing the coming-into-force date might negatively change the public’s perception of CASL and its importance.
The Canadian Bar Association expressed support for delaying the coming into force of the private right of action provisions until after the statutory review of CASL has been completed. They noted that such a delay would give the Government an opportunity to assess the appropriateness of the private right of action provisions in the context of CASL as whole. They noted that such a delay would not leave individual Canadians without enforcement of CASL and highlighted that a robust and comprehensive public enforcement regime is in place, with dedicated staffing and funding.
Privacy and Data Protection Directorate
Digital Policy Branch, Spectrum, Information Technologies and Telecommunications
Innovation, Science and Economic Development
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