The government must maintain and reinforce the application of the Canadian Anti-Spam Law (CASL), but it must also clarify vague notions of the Act and its regulations, as ascertained by the thirteen recommendations in the CANADA’S ANTI-SPAM LEGISLATION: CLARIFICATIONS ARE IN ORDER.
The report, recently published by the House of Commons Standing Committee on Industry, Science, and Technology cites forty-one expert testimonies with analyses from approximately thirty memoirs over the course of ten weeks.
CASL is effective
Despite highly polarized interventions between lobbyists and business lawyers, who described CASL as a catastrophic situation, and consumer representatives, who believe that the fines are insufficient, parliamentary members relied on information provided by Certimail to conclude that, despite the constraints, CASL offers a good balance between consumer protection and business competitiveness, but that aspects of the law require clarification.
CASL must change its name
The first and last recommendations of the Committee are to change the short name “Canadian Anti-Spam Law (CASL)” to “Electronic Commerce Protection Act (ECPA)”. Members noticed that many companies do not feel concerned by the Law because they are not aware that CASL governs all commercial electronic communications, and not just spam or email marketing.
CASL must be clarified
Recommendations 2 to 8 call on the government to clarify and detail certain elements of CASL and its regulations to ensure that non-profit businesses and organisations better understand what is allowed or not.
The elements that the Committee recommends to clarify are:
- the definition of “commercial electronic messages“
- the status of administrative and transactional messages
- the status of messages between companies
- notions of implied and express consent
- the definition “email address”
- messages that are exempt to section 6.6 of the Act
- management of referral messages
- the application of the Law as it applies to charities and non-profits organisations
These clarifications of the Law and its regulations will address some of the vague regulations, but it does not or will not change the CRTC’s compliance requirements.
The CRTC must take care of small businesses
In its ninth recommendation, the Committee wants the CRTC to make a significant effort to raise awareness, particularly among small businesses. This recommendation is based on a thorough evaluation of the CRTC’s work. The Committee emphasized in the report that all stakeholders were unanimous in saying that the CRTC must review its awareness activities and guidance documents to ensure that they are sufficient and effective—(very happy to see that part of my intervention was even quoted directly in the report, page 14) —indicating that the compliance requirements are hidden on the CRTC’s website and are not even listed on the fightspam.gc.ca website. The CRTC is therefore invited to redouble its awareness-raising efforts, particularly with small businesses.
Postponement of Civil and Class Actions
The Committee considers that the Private Right of Action (PRA), which allows civil or class actions to be launched after receiving a non-compliant message, must be maintained but suspended pending clarification and awareness-raising efforts. The Committee’s tenth recommendation also suggests that the Government assess whether the damages that may be claimed in this regard should be demonstrated.
The CRTC’s cooperation with the RCMP
During their testimony before the Committee, the CRTC indicated that it is currently less limited in its dealings with authorities in other countries than with the RCMP and other Canadian security agencies. The Committee heard the message and dedicates its eleventh recommendation to fostering cooperation between the CRTC and police authorities across the country.
Transparency in complaints, investigations, and fines
The CRTC and government are encouraged to find ways to make the investigation and fine-setting process more transparent while promoting access to data on complaints received and trends in problems.
I was happy to read that Certimail’s contribution was quoted a dozen times in the report. This not only made me proud of my first lobbying experience but glad to have helped our MPs to understand SMBs’ reality in regard to email marketing and CASL compliance. Upon reading the recommendations, it’s clear that Certimail’s pragmatic approach has served the interests of our clients much better than the dogmatism of the official lobbies like CFIB and Canadian Chamber of Commerce, that don’t really seem to know and understand the undertakings of being compliant or even email marketing at all.