Canadian Spam Law Speech Restrictions Constitutional: Regulator

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By Peter Menyasz

Canada’s Anti-Spam Legislation (CASL) doesn’t violate constitutional guarantees of freedom of expression, the country’s anti-spam regulator has ruled.

The Canadian Radio-television and Telecommunications Commission (CRTC) Oct. 19 rejected a free expression constitutional challenge by 3510395 Canada Inc., operating as Compu-Finder. Although commercial electronic messages are protected under the Charter of Rights and Freedoms because they convey meaning, and the CASL’s prohibition against sending messages without consent and other provisions restricted Compu-Finder’s rights, the benefits of the law in maintaining confidence in electronic commerce outweighs that harm, the regulator said.

The CRTC did agree in a separate ruling issued the same day to reduce its C$1.1 million ($870,000) fine against Compu-Finder to C$200,000 ($158,000) for sending unsolicited emails to promote its professional training programs. It was the first fine levied under the anti-spam law and the reduced amount is far short of the C$10 million ($7.9 million) maximum available under the CASL for violations by businesses.

The CASL is likely to ultimately be struck down in court on constitutional grounds, Barry Sookman, a senior partner in the Toronto office of McCarthy Tetrault LLP, told Bloomberg Law, but for now companies operating in Canada should follow the letter of the law or they may face stiff penalties.

Constitutional Challenge

The Canadian Supreme Court test for constitutional guarantees requires that a government legal mandate involve minimal impairment of rights and that it be proportional to the harm being addressed. The courts also owe no deference to the constitutional law findings of the regulator.

The CASL fails on both counts, Sookman said. Commercial speech rightly has less protection than political speech or other forms of personal expression, but the CRTC wrongly lumped together all kinds of speech and treated it all like commercial advertising, he said.

The law overreaches to regulate messages sent for non-profit funding, among friends, or even by children asking neighbors to support a lemonade stand to raise money for charity, David Fraser a partner with McInnes Cooper, in Halifax, Nova Scotia told Bloomberg Law. “How can it be proportional if you’re regulating that kind of message?” Fraser said.

CompuFinder didn’t immediately respond to Bloomberg Law’s request for comments.

To contact the reporter on this story: Peter Menyasz in Ottawa at correspondents@bna.com

To contact the editor responsible for this story: Donald Aplin at DAplin@bna.com

For More Information

The CRTC's decision on constitutionality is available at http://bit.ly/2gBR4mQ.

The CRTC's deicsion on peanlties is available at http://bit.ly/2gELe4l.

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