Private Right of Action Provisions of Canada’s Anti-Spam Legislation
As you are likely aware, Canada's Anti-Spam Legislation (CASL) came into effect on July 1, 2014. At the time, dealerships were encouraged to review their customer bases and list customers to which they had neither express nor tacit consent.
On the effective date of the law, a transitional rule conferred 36 months of implied consent, rather than the standard 24 months (6 months in the case of a request) to a dealer holding an existing business relationship with a customer.
Private right of action suspended
The last part of CASL – the private right of action – was supposed to come into effect on July 1, 2017, but on June 7, 2017, the federal government issued an order in council deferring the Private Right of Action until the conclusion of a parliamentary review “in order to promote legal certainty for the many interested parties who claim to have difficulty complying with CASL given the uncertain interpretation of several provisions of the Act and who would otherwise be exposed to the risks of legal proceedings.
Penalties still apply
While this postponement will prevent consumers from suing for damages privately or through a class action, dealerships still have an obligation to comply with CASL. As a reminder, the amount of the maximum penalties for a violation of CASL by a private person is $1 million, while it is $10 million for a violation of CASL by a company.
What you can do to ensure your dealership complies with CASL?
Your dealership must exercise due diligence and comply with CASL. Here are some tips to follow, especially if you have any doubts about your dealership’s current level of compliance:
- appoint a privacy officer in each department;
- evaluate all the media on which you collect consent, including forms, surveys, etc.;
- review your databases to identify all potential customers and current customers for whom you do not have consent and delete them;
- have a system in place to help you track consents and keep them in effect;
- Implement a CASL compliance policy and train all staff.