This fall, Canada’s House of Commons Standing Committee on Industry, Science, and Technology (“INDU”) was charged with completing a legally required review of Canada’s anti-spam law, commonly referred to as CASL.
The committee held a series of hearings this fall, including submissions from the Burnaby Board of Trade and Canadian Chamber of Commerce that our Kinetix’ team participated in developing. Although INDU stopped short of suggesting how CASL should be changed, the report is very clear on one thing. Canada’s anti-spam law is confusing and must be clarified.
From the summary of the report:
The evidence presented during this statutory review reveals wide differences of opinion about how the Act should be interpreted. The Committee joins its voice to that of witnesses demanding clear, effective, accessible, and regularly updated guidance materials from enforcement agencies. Such materials should be designed with their end users in mind and supported by their feedback. While improving guidance and education should be a priority moving forward, it can only achieve so much. The Act and its regulations require clarifications to reduce the cost of compliance and better focus enforcement. Provisions defining “commercial electronic message,” consent, and “business-to-business” messages, among others, warrant the attention of the Government of Canada. The Government will be in a better position to assess the impact of the coming into force of the private right of action once these clarifications are implemented.
How to Improve Canada’s Anti-Spam Law
The committee made several specific recommendations to improve the legislation, including:
- Changing the name of the legislation to better reflect it’s true scope and function.
- Clear up the definition of “commercial electronic message“.
- Clear up the definition of “implied consent”.
- Clear up the definition of “express consent“.
- Clear up the definition of “electronic address”.
- Clearly state whether business-to-business electronic messages qualify as CEMs.
- Clearly state whether messages described in section 6(6) of the act are CEMs.
- Clear up definition of section 6(2)(a) of the Act.
- Clear up how the act applies to non-profit organizations and charities.
- Increase and improve the quality of education provided around the act.
- Be more transparent in the “methods, investigations, and determinations of penalties, as well as on the collection and dissemination of data on consumer complaints and spamming trends”.
- Better data sharing with local law enforcement authorities.
- That the government further investigate the impact the private right of action provision only after all of the above have been resolved, and before allowing that provision to come into force.
The remaining thirty-odd pages provide additional detail on the foundation for the recommendations, and are well worth read. But one has to wonder… if all of that is unclear in the act as written, what exactly is left?
One thing is certain.
CASL is likely to change. And until then, compliance will remain a combination of common sense with a dash of ‘best guess’ for Canadian businesses, giving a whole new definition to the term “spray and pray”.
You can download the official report here.