Canada’s Anti-Spam Legislation survives court appeal

The Federal Court of Appeal has upheld the constitutionality of Canada's Anti-Spam Legislation, commonly known as CASL. In a decision released Friday, the court dismissed an appeal that sought to challenge the constitutionality of the anti-spam legislation. The appeal, brought by a company doing business as CompuFinder, argued that the legislation -- and a $200,000 administrative fine it received from the CRTC under the law in 2017 after sending out hundreds of unsolicited marketing emails -- violated several sections of the Charter. Writing for the court, Justice Marc Nadon ruled that CASL did not violate several sections of the Charter, as alleged by CompuFinder. Specifically, CompuFinder had argued that the fine they were handed by the CRTC constituted a penalty without the appropriate due processes they were entitled under Section 11 of the Charter. CompuFinder's argument, the court found in its decision, rested on the assertion that that fine they received amounted to a criminal offense. "The process associated with CASL’s regime does not bear any of the hallmarks of a criminal proceeding, nor do the relevant provisions of CASL use any of the words traditionally associated with the criminal process," Nadon wrote. The decision also affirmed that the CRTC did not make errors of law in its determination that CompuFinder did not meet the requirement under CASL that "unsubscribe mechanisms must be able to be readily performed" in marketing emails. During the federal election campaign last year, the Centre for Digital Rights -- the non-profit founded by former BlackBerry Ltd. co-CEO Jim Balsillie -- argued in a letter to the CRTC that a piece of Facebook Inc. software used by the three main political parties is effectively malware and violates CASL.

Canada’s Anti-Spam Legislation survives court appeal

Brief | June 5, 2020

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