CASL's Private Right of Action Delayed Indefinitely

Posted: June 08, 2017 | Last Updated: June 23, 2017
Written by: Andrew J.D. Buck

There's good news for businesses, related to Canada's Anti-Spam Law (CASL).

As discussed in previous posts, CASL's private right of action was set to come into force on July 1, 2017.  The private right of action would have allowed any victim of a CASL violation to sue the person who was responsible for the violation.  That's a significant change from the present situation, since currently, only the Canadian Radio-television and Telecommunications Commission (CRTC), and in limited cases, the Office of the Privacy Commissioner of Canada and the Competition Bureau, are responsible for prosecuting CASL violations.

The private right of action brings with it the prospect of statutory damages of up to $200 for each violation of CASL's anti-spam provisions, to a maximum of $1 million per day on which the breach occurred (plus awards to compensate actual losses).

The federal government recently announced in a press release that it is "suspending the implementation" of the private right of action, which would have allowed any victim of a CASL violation to sue the person who was responsible for the violation.

The press release was accompanied by an Order in Council, which formally delays the coming into force of the private right of action indefinitely, by amending a previous Order in Council which set July 1, 2017 as the coming into force date.

CASL is set to undergo a scheduled parliamentary review.  It may be that, after that parliamentary review, CASL will be amended and the private right of action will be resuscitated.  Or not. 

For now, we do know that the private right of action will be suspended until further notice.  And that's good news for businesses and non-profit organizations alike.

Andrew Buck has a business law practice, with a focus on electronic commerce issues. As part of that practice, he provides guidance about CASL compliance.  Andrew is also a member of the Canadian Bar Association's National Access and Privacy Law Section, which has had an active role in advocating with respect to the implementation of CASL