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Davit Akman, Brian Fraser, Christopher Oates, Brenda Pritchard, Jul 29, 2014
On July 1, 2014, Canada’s Anti-Spam Legislation—the Canadian version of U.S. CAN-SPAM-came into force. While much has been written about the consent and disclosure/form requirements for commercial electronic messages imposed by the new legislation, and the draconian penalties for non-compliance, comparatively little has been said about the amendments to the Canadian Competition Act under CASL related to false or misleading representations in commercial electronic messages.
The Spam Amendments significantly expand the potential antitrust risk associated with sending commercial emails and other electronic messages in (and to) Canada through the creation of new enforcer/plaintiff-friendly criminal and civil offenses, backed by (among other things) the threat of jail and multi-million dollar “administrative monetary penalties” as well as an expansive private right of action for compensatory and statutory damages. Given the difficulty and expense of locating-much less enforcing fines or damages awards against-the perpetrators of email and internet frauds like the Nigerian 419 scam, the burden of the Spam Amendments will fall most heavily on legitimate businesses in Canada, the United States, and elsewhere using electronic channels (i.e., email, SMS, social media or instant messaging) to promote products or services in Canada. These legitimate businesses will make easier targets for the Canadian Competition Bureau and class action plaintiffs’ lawyers alike.
