The Standing Committee on Industry, Science and Technology has released its final report on CASL, Canada’s anti-spam legislation. While some groups pleaded for a legislative overhaul – Scott Smith of the Canadian Chamber of Commerce “urge[d] this committee to take a stand on this legislation and make recommendations for a significant overhaul” – the committee adopted a far more cautious tone, limiting the recommendations on substantive provisions to “clarifications” of the law. The emphasis on clarification (it even appears in the study title) is clearly intentional, stopping short of specifying any precise legislative amendments. I appeared before the committee, arguing that spam and spyware pose real risks and that there is evidence that the law has been effective in reducing spam and improving the effectiveness of electronic marketing.
The report readily acknowledges the competing views on the law:
critics of the Act claim that its prescriptive and often unclear provisions have a chilling effect on commercial electronic communications, others observe that the Act increases the effectiveness of electronic marketing, protects the autonomy and privacy of consumers, and reduces the costs associated with unsolicited commercial electronic messages.
The report argues that better guidance would help, but it recommends clarifications of several substantive provisions, including the definition of a commercial electronic message, consent, business-to-business messages, and the application of the law to charities. That approach falls short of recommending major changes or amendments to the law, however, and could be achieved by supplementing existing regulation or even through additional administrative guidance. Indeed, the committee’s approach can be contrasted with its administrative recommendation, which includes a direct call for an amendment to the name of the law to the original Electronic Commerce Protection Act. The committee also recommends more pro-active enforcement efforts across government, better education and guidance materials, and continued delay of the private right of action. The NDP wrote a supplementary opinion to the report, which supported improved training but rejected other changes. Moreover, it recommended implementing the private right of action and conducting another study in three years with the support of more data on the effectiveness of the legislation.
The committee has asked the government for a detailed response to the report, which should be forthcoming in the spring. The government can be expected to fully support the enforcement recommendations, but retain flexibility on the recommendations for further clarification. While it remains possible that ISED Minister Navdeep Bains could later introduce clarifying amendments or regulations, the political risks associated with opposition criticism for weakening consumer privacy just prior to the 2019 election campaign more likely means that the foundation of the law will be kept largely unchanged for the foreseeable future. If so, the report should be a wake-up call for the CRTC to improve its guidance and enforcement efforts and for business to come to grips with the fact that Canada’s anti-spam law is here to stay.