Canadian Lawyer InHouse

41 CANADIANLAWYERMAG.COM/INHOUSE MAY 2017 L a w D e p a r t m e n t M a n a g e m e n t Clausi was speaking April 3 as part of a panel entitled Get Smart: Conquering CASL and the New Private Right of Action at the Canadian Corporate Counsel Association's national conference in Toronto. He doesn't think there will be multiple multi-million- dollar settlements, but he does predict there will be "strike suits" given the standard that the plaintiff has to meet, which is "almost nothing and then damages are assumed. "I have never seen a greater dichotomy between the pervasiveness of the legislation and the lack of knowledge about it than with CASL," said Clausi. "We all think we've complied with CASL, but I can pretty much guarantee you that there's no one in the room in compliance with CASL today. It is a horrible, pervasive, invasive piece of legis- lation. It ought to keep you awake at nights." Clausi fi rst started following CASL in 2011 and "thought they were kidding." He stayed on top of the legislation and in July 2014 when CASL came into effect he saw the enforcement start to roll in. He went on to say that the biggest risk in any business is actually every single person in that business who sends commercial electronic messages. "Every commercial electronic message you send is subject to CASL and odds are you are not in compliance," he said. CASL is not covered on cyber-insurance riders and Clausi pointed out that there is no insurance policy yet available in Canada to cover CASL violations, further com- pounding the concern that it is coming into force in matter of months. "Without an insurance policy, it's com- ing out of your equity," he cautioned the audience of in-house lawyers. "I know two insurance companies working on it and they're struggling to get the wording right. From a businessperson's perspective, I fi nd that a compelling reason for the PRA to be delayed. Not every business can afford to have it come out of its equity." In terms of trying to prepare for the PRA, the task should be shared by a number of stakeholders that go beyond the legal depart- ment, including HR and risk management. "This is not an IT problem, this is not a law problem. The person who should be worried about this is the person responsible for risk management. They have to pull in human resources. You have to update poli- cies and train employees and stress test the system," he said. The software updates section of CASL scares Clausi the most. A section of the leg- islation says you can't install software on someone else's device without prior consent. You are also not allowed to have software that "broadcasts" information without the person's consent. What really has Clausi uneasy about the pending PRA is software applications on phones. Apps that can access contacts on phones or GPS could be a problem. "If you're in a company that has your own app or an app developer, this might bring down your entire business," he said. "The in- stant that app squirts the least bit of data back to the mother ship, that's a CASL breach." Heather Innes, former general counsel with General Motors, said the CRTC has "many investigations underway. "What I've heard is if you are pulled into an investigation, whatever the ultimate outcome, you will have spent thousands of hours trying to manage the investigation and respond to the inquiries made by the CRTC. It is rigorous," she said. I have never seen a greater dichotomy between the pervasiveness of the legislation and the lack of knowledge about it than with CASL. PETER CLAUSI, GTA Resources and Mining

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