The CRTC recently released 2 CASL decisions on Compufinder. If this sounds familiar, it is because this is an appeal from an initial finding in 2015 that levied a $1.1 million penalty.
Compufinder took the position that CASL is unconstitutional. Many legal experts have questioned the ability of the Federal Government to pass this legislation. The CRTC decided that CASL is constitutional. But this is not the last word. Inevitably this will be argued in court. This decision is required reading for anyone who finds themselves in a position to challenge the act in the courts. Ironically, the delay of the private right of action may have delayed getting the constitutionality issue to the appeal level.
In the substantive decision the penalty was reduced to $200,000. This decision is required reading for anyone facing sanctions under CASL.
Topics covered include:
- what the business to business exemption means (Compufinder failed to convince them that the exemption applied)
- the conspicuously published implied consent, including who published it and message relevance
- what is needed to show a diligence defence (it’s not easy)
- factors in determining the size of the penalty
The decision shows that the CRTC will examine the CEM’s sent in individual detail, and that the business has a high onus of proof to show that they have done everything necessary to comply with the act for each and every one of them.
IMHO most small businesses simply don’t have the resources to meet the requirements. And no matter how hard they try, larger businesses will have a difficult time attaining them. To me CASL is like using a sledgehammer to kill a fly in a china shop. You may or may not kill the fly, but the collateral damage simply isn’t worth it.
Hopefully changes will be made to CASL as a result of the current review of the statute.