Since Canada’s anti-spam law (CASL) came into effect July 1, many businesses have been scrambling to bring their communications practices into compliance – and to understand what that compliance requires. But is the law itself even legal?

That’s the question examined by a paper published in the journal Tech & Privacy by University of Windsor associate professor Emir Crowne. The paper argues CASL is unconstitutional under Canada’s charter for several reasons:

  • CASL, which restricts “commercial electronic messages” (CEMs), has a vague and broad definition for CEMs that casts too wide a net and encroaches upon valid commercial activities.
  • CASL has negative effects on small and mid-sized businesses and there’s some legal problems raised around the exemptions for family and personal relationships.
  • The exemptions in CASL don’t solve the problem and the regulations fail to provide clear guidance while imposing onerous standards.

You still have to comply

While businesses should monitor what happens with CASL as it progresses, they should also be making efforts to comply with the legislation as much as possible. There’s no indication the government is looking to revisit the issue and any court challenge faced by the legislation may not be triggered until a major enforcement effort is made (i.e. a business is fined a substantial enough amount that its worth going to court) or may never happen at all.

Expect that CASL will continue to roll out on the established timeline and make sure you’re compliant well before the grace period ends.

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