Government of Canada Suspends CASL's Private Right of Action Provisions
By Order in Council dated June 7, 2017, the federal government suspended the coming into force of the private right of action provisions under Canada’s Anti-Spam legislation (CASL), “in response to broad-based concerns raised by businesses, charities and the not-for-profit sector.” Privy Council Office Announcement.
Under the private right of action provisions, organizations (and their officers, directors and agents) could be sued by any person claiming to have been affected by a contravention of CASL. Plaintiffs could claim both compensatory damages (for actual losses, damages and expenses suffered or incurred) as well as statutory damages (which in some cases could amount to as much as $1,000,000 per day).
Experts predicted the provisions would be used to support class action lawsuits seeking significant statutory damages on behalf of groups of affected individuals. The indefinite suspension of the private right of action provisions eliminates the risk of private litigation or class actions under CASL for the time being.
The surprise announcement does not specify if or when the private right of action provisions will take effect in the future, but does indicate that a parliamentary committee will be reviewing CASL “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.”
Although the private right of action provisions have been suspended, all other provisions of CASL remain in force and in effect and are subject to regulatory review and enforcement proceedings, with the potential for significant administrative monetary penalties for non-compliance.
If you have any questions regarding upcoming provisions to CASL, please contact a member of Field Law’s Privacy + Data Management Group.