If you are on the receiving end of a CASL complaint, do not panic. While the potential penalties for violating CASL are steep (at the extreme – $1 million for an individual and $10 million for a corporation), you are not without recourse. Following are some basic tips for responding to a CASL complaint:
- Avoid the “head in the sand” phenomenon Ignorance of the law is no excuse. It is not an acceptable legal defence to take the position that you violated CASL because you were unaware of its specific requirements. Thus, if you receive notice of a complaint, do not ignore it!
- Get help CASL is a complex regulatory regime, with many nuances. It is in your best interest not to try to respond to a CASL complaint yourself. As soon as you receive notice of a complaint, you should get help from a lawyer with expertise in CASL, as such lawyer can help you navigate the process and potentially avoid liability.
- Seek disclosure CASL entitles you to certain constitutional and administrative rights, including the right to know the case against you. You should, therefore, seek the disclosure from the CRTC of the particulars of the complaint filed against you and of the evidence which the CRTC has compiled in your case.
- Conduct an investigation and preserve all relevant data As soon as you become aware of a CASL complaint, you should take immediate steps to investigate it internally within your organization. You should also take immediate steps to gather and preserve all of the relevant evidence. In that regard, any CASL complaint inevitably involves electronic evidence. The proper gathering and preservation of electronic data is likely to require the assistance of IT specialists.
- You may not have violated CASL! CASL contains several exclusions and exemptions. It is possible that the complaint filed against you falls within one or more of those exemptions and, therefore, you have not actually violated CASL’s provisions. The onus of proving that you are in compliance with CASL, however, rests on you – not on the CRTC or the complainant.
- Raise the due diligence defence One of the strongest CASL defences is the “due diligence defence”. It is available if you can demonstrate that you had taken reasonable steps to comply with CASL, such as implementing an internal CASL compliance policy. If you can demonstrate that you have put into place a reasonable compliance policy, you may avoid liability for violating CASL altogether.
- Challenge the legislation CASL is new and entirely untested. Neither the CRTC nor the courts have yet to consider its scope, interpretation and constitutionality. Indeed, there are a number of administrative and constitutional grounds on which CASL may be challenged. If you are facing a CASL regulatory proceeding, you should consider raising some of those challenges. After all, you may be the first to set a precedent in Canada for successfully challenging CASL.
Canadian Tech Law at Zemel van Kampen LLP
Maanit Zemel is a founding partner of Zemel van Kampen LLP, a boutique Canadian technology and litigation law firm located in Toronto. Maanit is a leading civil and commercial litigator and Internet lawyer with 20 years of experience. She has particular expertise in Canada’s Anti-Spam Legislation (CASL), online defamation and cyberbullying, e-commerce disputes, and data privacy and cybersecurity law. Maanit has successfully represented clients before all levels of courts and tribunals, including the Supreme Court of Canada. Maanit is also a part-time Adjunct Professor at Toronto Metropolitan University and the University of Toronto, where she teaches courses on Internet Law, International Business Law and Cybercrime.
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