Legal news and trends for Canadian in-house counsel and c-suite executives
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INDUSTRY SPOTLIGHT ANTI-SPAM LAW DRAWS BACKLASH Legislation called Canada's "biggest restraint ever on freedom of speech". By Michael McKiernan A mid-September webinar gave Patricia Wilson an insight into the waves Canada's anti-spam law is making in the in-house community. The Ottawa partner at Osler Hoskin & Harcourt LLP co-hosted the event, which drew an unseasonably large audience of well over 300 viewers from across the continent, mostly corporate counsel hungry for information on compliance with the new legislation. "I think many busi- nesses are just realizing that this applies to them, too. They're all going, 'Oh my God, what do we have to do?'" Wilson says. Bill C-28, or CASL, as it's become known, received Royal assent in Decem- ber 2010, and while Canada arrived late to the anti-spam party — it was the last of the G7 nations to enact legislation dealing with the issue — it's been making up for lost time since, quickly establishing itself with some of the toughest provisions the world has seen. The act bars senders from delivering unsolicited commercial electronic messages, which includes text messages and e-mails, without receiving express or implied consent from the recipient. The broadness of the legislation has challenged common con- ceptions of spam, and forced businesses to rethink the way they market themselves and sell to the public. "Anti-spam legislation is typically considered as some- thing that goes after the bad apples. People think of those in-the-depths-of the-night type e-mail spammers who are running scams or sending viruses," Wilson says. "This leg- islation has quite a broad scope and it will capture many regular business operations by legitimate operators, so in-house counsel are starting to realize that this imposes additional requirements that they're going to need to take into account." To give it some muscle, the government has backed up its new measures with some impressive potential fines. Individuals who breach the law can face penalties of up to $1 million, while corporations are liable for as much as $10 million. Officers and directors may also be held liable if they participated in or acquiesced to the breaches. The act also creates a pri- vate right of action for CASL violators, paving the way for potential anti-spam class actions, with remedies capped at $1 million per day. Those headline-grabbing numbers have been enough to attract the attention of many legal departments, but at the Globe and Mail, legal counsel Logan Willis says they're not the only things that should concern them. "Penalties can be very high, but there are also reputational risks associated with non-compliance. At the Globe, for example, two-way engagement with our readers and the users of our media is very important to our business, so it's critical we live up to their expectations as INHOUSE DECEMBER 2011/JANUARY 2012 • 33