CASL destined to be challenged on grounds it violates Charter rights: lawyers

Canada’s regulations to limit unwanted email messages from businesses have been four years in the making, but if organizations representing the business community get their way, it could unravel much faster than that.

Canada’s Anti-Spam Legislation (CASL) is set to come into effect July 1 and requires businesses to receive consent from consumers before sending them commercial messages via email or any other digital channel. But members of the business community and lawyers critical of the new law say the first organization fined by the enforcement regime will likely challenge it in court on the basis that it violates the Charter’s protection of free speech. In this case, it would be a limitation on commercial speech.

The new regime governing the sending of email and other so-called “commercial electronic messages” (CEMs – covering instant messages and social media too) is too strict, says Scott Smith, director of intellectual property and innovation policy at the Chamber of Commerce. Canada is one of the few countries to require an opt-in by the consumer to receive messages, instead of just allowing them to opt-out.

So what’s to be done?

Asked directly if he knew of any groups organizing a court challenge to CASL, Smith responded: “There’s been some discussion about that at the chamber … we haven’t come to any conclusions yet.”

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CASL compliance event

CASL received Royal Assent to be passed into law in December 2010. But it’s taken years of consultation sessions held by Industry Canada and the Canadian Radio-television Telecommunications Commission (CRTC), several revisions made to the wording of the regulations, and a lot of waiting to finally come to the point where it will be actively enforced. Three government bodies will coordinate enforcement of the anti-spam bill: the Competition Bureau, the Privacy Commissioner of Canada, and the CRTC.

Anti-spam bill actually anti-free speech? 

Should CASL be brought to court on the basis it violates free speech, a judge would have to balance the consumer’s right to privacy against the commercial right to free speech, says Barry Sookman, a partner at Toronto-based McCarthy Tetrault LLP. While it’s clear that CASL does limit freedom of commercial speech in some situations, a judge could deem that those are reasonable limitations because they protect the privacy of would-be message recipients. If the legislation limits speech only to the extent that it needs to in order to meet its goals, it’s a good law. If it goes too far, then it infringes on the Charter.

For Sookman, CASL represents one of the biggest threats to free speech on the Internet in Canada.

“There’s nothing like it that has this much of a lockdown on speech,” Sookman says. “That’s why I say it won’t be able to stand up to a Charter challenge.”

Industry Canada says CASL will come into effect July 1 as planned and that lawmakers took the Charter into consideration when creating the legislation. In a statement emailed to in response to a request for an interview, an Industry Canada spokesperson said that when Parliament passed the bill into law, they agreed that it was consistent with the Charter. (CASL received support from all three major political parties in the House of Commons.)

Other lawyers disagree. Michael Geist holds the Canada Research Chair in Internet and e-commerce law at the University of Ottawa. He points out the bill went through a vetting process that included review by Department of Justice lawyers before being passed into law. Opposition to the new law has been overblown, he says.

“There’s been an awful lot of hyperbole and exaggeration about CASL,” he says. “Rather than actually talking about what the legislation really involves … we get a lot of people up in arms about legislation that is far from the horror story that it’s made out to be.”

If CASL is challenged in court, Geist says it’s a more likely scenario that a judge would make smaller tweaks to areas where the law is overbearing, rather than throw out the entire piece of legislation wholesale. The law could be modified to add another exemption, for example, in addition to the exemptions already built in to the legislation.

CASL legislation a ‘bundle of spaghetti’

What could also be at issue with CASL is whether the law is clear enough. A court could test whether it’s reasonable to expect most businesses to understand exactly what messages they’re allowed to send without consent and when they need to obtain consent before sending a message. Privacy lawyer David Fraser characterizes CASL as convoluted and nonsensical.

“They’ve had to go back to the drawing board a number of times, but they didn’t just scrap it and start from scratch,” he says. “In a way it’s like a big bundle of spaghetti when you have to find out where the threads go.”

CASL is lowering the bar on what proof is required to fine organizations compared to other legislation, Fraser says. There’s terminology in the bill that’s not clearly understood, and other areas where the intent of the sender could make the difference between compliance and a violation.

Sookman agrees the law is too vague. “The legislation is in fact impossible to comply with in a perfect way,” he says. “In some cases its just technologically impossible to comply with it.”

He gives the example of sending a SMS message. The limited character length of those messages makes it impractical to notify the recipient of who sent it and how to unsubscribe in each individual message.

But Geist disagrees, saying the law is “perfectly clear” after being through three years of debate and consultation process involving business groups. “You get people that screamed for reforms and now because they get those reforms they asked for, it’s unclear?” he says. “That’s pretty rich.”

A coalition of 15 business associations including the Chamber of Commerce, Canadian Federation of Independent Businesses, Canadian Marketing Association, Information Technology Association of Canada, Canadian Bankers Association, and the Canadian Wireless Telecommunications Association have sent comments and official submissions regarding CASL to Industry Canada. A review of the law is planned for three years from now, thanks to a clause built into the legislation.

For now, businesses should be gathering opt-in consent from customers to send email communications to them, and they should ensure they are in compliance with CASL by Canada Day.

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Jim Love, Chief Content Officer, IT World Canada

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Brian Jackson
Brian Jackson
Editorial director of IT World Canada. Covering technology as it applies to business users. Multiple COPA award winner and now judge. Paddles a canoe as much as possible.

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