Law Times

Law Times • January 8, 2018 Page 5 www.lawtimesnews.com Committee recommends changes to anti-spam law BY ELIZABETH RAYMER For Law Times A government standing committee has made recommendations for revision of Canada's Anti-Spam Legislation to pro- vide clarity to organizations, including assisting them in in- terpreting and applying the law. The Standing Committee on Industry, Science and Tech- nology made 13 recommenda- tions in its report, released last month. The theme of INDU's recom- mendations was clarification, says David Elder, who practises communications, competition and privacy law with Stikeman Elliott LLP in Ottawa. "There is uncertainty and vagueness in the law, which makes it difficult [for business- es] to comply; when you com- bine that with heavy financial penalties, it makes it difficult" for Canadian businesses to mar- ket their products and services. "It would be desirable to have more transparency and certain- ty in terms of the enforcement models," he says. When Parliament enacted it in 2010, CASL amended the Canadian Radio-television and Telecommunications Com- mission Act, the Competition Act, the Personal Information Protection and Electronic Doc- uments Act and the Telecom- munications Act. The duty of enforcing the Act is shared by the CRTC, the Competition Bu- reau and the Office of the Pri- vacy Commissioner of Canada. The Act came into force in 2014, and it prohibits commer- cial conduct that would impair the reliability and best use of electronic means of carrying out commercial activities; nota- bly, companies have been penal- ized for sending "spam" email to individuals. Following a series of hearings with stakeholders in the fall — witnesses included the CRTC, the Canadian Chamber of Commerce, the Canadian Mar- keting Association (which Elder represented) and the Canadian Bar Association — the standing committee "pointed out they had heard loud and clear that there is a certain amount of lack of clarity in the law, including a chill on electronic marketing," says Elder. A number of businesses, in- cluding prominent companies such as Rogers Communica- tions and Porter Airlines, have had to pay significant fines for violating the legislation. "These were companies try- ing to comply [with the legisla- tion], but inevitably things go wrong: Servers act up, things don't come through," Elder says. And although affected com- panies "took immediate steps to comply," they were typically fined upwards of $200,000, he notes. Recommendations of the standing committee to amend CASL include: • to clarify CASL'S definition "of 'commercial electronic mes- sage' to ensure that the provi- sions as enacted in the Act and its regulations are clear and understandable for parties subject to the legislation and do not create unintended cost of compliance. In particular, the status of administrative and transactional messages should be clarified"; • to "clarify the provisions per- taining to 'implied consent' and 'express consent' to ensure that the provisions as enacted in the Act and its regulations are clear and understandable for parties subject to the legis- lation and do not create unin- tended cost of compliance"; • to increase efforts to educate Canadians, "especially small businesses," about the require- ments of the Act and the tech- nological tools available to them to assist with compliance. Another significant recom- mendation was that the gov- ernment further investigate the impact of implementing the pri- vate right of action once chang- es and clarifications have been implemented to the Act and its regulations. Canada would be one of just a few jurisdictions that allows a private right of action, says El- der, under which anyone who is aggrieved based on a violation of the law can bring an action for damages of up to $200 per day per incident. "Not only can they sue for actual damages but for statutory damages, which need not be proved," says Elder. "There's real concern there for class actions." The majority of the corpo- rate sector thought it was a bad idea to allow private individuals to sue for damages, he adds. Molly Reynolds, a senior associate at Torys LLP who fo- cuses on privacy, anti-spam and e-discovery matters, said she sees the recommendations "as conservative progress toward reform and the reaction to those recommendations as largely one of cautious optimism." "The committee identified many of the key problems or ambiguities in CASL, especially around consent and the defini- tion of a CEM, but the recom- mendations do not give much guidance on how those issues should be resolved by the gov- ernment," she said. She also said the commit- tee "did thorough, high-quality work in its consultation and review process." However, she said there could have been more communication around "how the areas needing clarification could be improved." "Because a lot more work will need to be done by the govern- ment to assess whether to re- form any of the items highlight- ed by the committee and if so, what changes to make to the Act or regulations, I don't expect the law will be changed on any ex- pedited timeline." LT NEWS David Elder says the majority of the cor- porate sector believes it would be a bad idea to allow private individuals to sue for damages for violations of anti-spam laws. Municipal Elections Compliance Audit Committee Recruitment York Region York Region's municipalities are recruiting experienced professionals for appointment to their 2018-2022 Municipal Elections Joint Compliance Audit Committee. The Committee is required by the Municipal Elections Act, 1996 to consider applications requesting audits of candidates' campaign nances. Committees may be required to appoint auditors and determine if legal proceedings are required as a result of the auditors' reports. Applicants with a background in accounting, auditing, law, election administration, and/or public administration are preferred. Applicants should: • have an understanding of municipal campaign nance provisions; • demonstrate analytical decision-making and excellent communication skills; • have experience working with or as a member of government boards, task forces and/or quasi-judicial bodies; and • have exibility to attend meetings during daytime and evening hours. Applicants cannot be candidates in the 2018 Municipal Election nor can they have committed to providing professional advice to any person running for of ce in any York Region municipality. Applicants also cannot be Members of Council or current employees of any York Region municipality. The Committee's term of of ce is four years, beginning in 2018. Successful applicants will receive a retainer of $400 and a per diem of $350 (plus mileage). For more information about the Committee visit RichmondHill.ca/2018Election or email elections@richmondhill.ca. To apply, visit RichmondHill.ca/2018Election. The application deadline is 4:30 p.m. on Friday, February 2, 2018. RichmondHill_LT_Jan8_18.indd 1 2018-01-03 4:05 PM

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