March 18, 2016
CASL sets up a strict liability regime
● s. 20 - violate ss. 6 – 9 of CASL, liable for an AMP
● s. 24 – if served with a notice of violation, either must pay or make representations re quantum of AMP or the alleged acts
● s. 13 – reverse onus – if accused alleges consent re acts in ss. 6 – 8, accused has onus of proving consent; silent on onus if charged under s. 9 (aiding/abetting)
● s. 20(4) - up to $1 million for individuals; $10 million for other entities
CASL and AMPS – Factors re Penalty
● Purpose of the penalty
● Nature/scope of the violation
● Accused’s history re CASL violations, reviewable conduct under s. 74.011 of the Competition Act, or s. 5 PIPEDA violations regarding electronic email harvesting or computer access to collect personal information
● Accused’s history re previous CASL undertakings or consent agreements re s. 74.011 of the Competition Act
● Financial benefit received from the violation
● Ability to pay
● Voluntary payments to affected persons
● “Any other relevant factor”
CASL – Due Diligence Defence – s. 33(1)
● R. v. Sault Ste. Marie [1978] 2 S.C.R. 1299 – created strict liability category of offences between mens rea and absolute liability offences; requires Crown to prove act beyond a reasonable doubt, but accused can avoid liability by demonstrating on balance of probabilities that:
● it had a reasonable belief in a mistaken set of facts which, if true, would render the act/omission innocent; or
● it took all reasonable steps to avoid the act
● Courts look at reasonable foreseeability of impugned events at the time the offence occurred
● Not a standard of perfection
● Due diligence defence is available in a variety of contexts
● Retrospective application problem
● How could it apply to CASL violations?
● Anti-spam corporate policies and communication
● Vetting of forms of consent, commercial electronic message headers, content, notice provisions
● Employee training and discipline
● Review/updating of policies
● Monitoring/auditing of email practices
● s. 33(2) – other legal defences also available
CASL – Private Right of Action – s. 47
● ss. 6 – 9 CASL violations, reviewable conduct under s. 74.011 of the Competition Act, or s. 5 PIPEDA violations regarding electronic email harvesting or computer access to collect personal information give rise to a private right of action
● s. 47 also creates private right of action against the directors/officers of a corporation that commits one of these violations and any “person” whose employee/agent in the scope of their employment/authority violates these sections, even if that employee/agent is not identified or prosecuted
● Risk of class actions
Court may order all of the following to be paid to the applicant:
● Compensation equal to actual loss/damage or expenses incurred;
● For breach of s. 6 (consent), up to $1 million/day
● For breach of s. 7 (altering transmission data) or s. 8 (installation of computer programs) - $1 million/day
● For breach of s. 9 (aiding/abetting/inducing/procuring) - $1 million for each contravention
● For a breach of s. 9 in relation to s. 6, up to $1 million/day (i.e., aiding, etc. a successful breach of s. 6)
● For a breach of s. 9 in relation to ss. 7 – 8 - $1 million/day (i.e., aiding, etc. a successful breach of ss. 7 - 8)
● $1 million/day for s. 5 PIPEDA violations regarding electronic email harvesting or computer access to collect personal information
● Up to $1 million/day for reviewable conduct under s. 74.011 of the Competition Act
● Factors Court must consider re penalties to be awarded to applicant
● Same as AMP factors plus whether or not applicant has received compensation in connection with the conduct - s. 51(3)(g)
Timing Issues
● s. 48(1) - Court may not order these penalties (other than compensation for actual loss/expenses) if the person has entered into an undertaking or has been served with a notice of violation
● s. 48(3) - Once application made for the penalties, it is too late to enter into an undertaking or for CRTC to issue notice of violation
● Limitation Period – s 47(2) – 3 years from day subject matter of proceeding became known
Canadian Anti-Spam Legislation(CASL) – Vicarious Liability
● Violations – i.e., breach of ss. 6 - 9
● s. 31 – directors, officers liable for offences of corporations if they direct, authorize, assent to acquiesce in or participate in offence, whether or not corporation is prosecuted
● s. 32 – persons liable for violations committed by employees/agents acting in the scope of their employment/authority whether or not the employee/agent is proceeded against
● s. 33 – due diligence and common law defences available as discussed above
● Offences – ss. 43, 44 – failure to preserve or produce documents, failure to provide assistance to those executing warrants, making
false statements, giving misleading information
● s. 44 – directors, officers liable for offences of corporations if they direct, authorize, assent to acquiesce in or participate in offence,
whether or not corporation is prosecuted
● s. 45 - persons liable for violations committed by employees/agents acting in the scope of their employment/authority whether or not the employee/agent is proceeded against
● s. 46(2) – due diligence defence available only for s. 42 offences of failure to preserve or produce documents, failure to provide assistance to those executing warrants. Silent on availability of common law defences
Private Right of Action
● s. 47(1) permits private applicant to apply for order for reimbursement/penalties not only against the entity but also against directors/officers/agents (if they participated, etc. in the conduct) of the entity or the employer of a person who contravenes CASL acting in the scope of their employment
● Does not matter whether or not the corporation/employer is proceeded against (ss. 52, 53)
● Due diligence defence (s. 54(1)) and common law defences (s. 54(2)) available
Aiding and Abetting
● Liability extends to any person who aids, induces or procures a prohibited act. (s.9)
● Liability extends to officers, directors, agents or mandataries of a corporation if they directed authorized, assented to, acquiesced or participated in the prohibited act (s. 31)
● Liability also extends to a person for violations committed by their employees, agents or mandataries acting within the scope of their authority (s. 32)
CASL – Fishing Expeditions
● Notice to Produce – s. 17 – potentially onerous
● s. 17(1) - requirement to produce document in possession or control or “prepare a document based on data, information or documents that are in their possession or control”
● Why permitted?
● s. 17(2)(a) – verify CASL compliance
● s. 17(2)(b) – determining ss. 6 – 9 CASL violations
● s. 17(2)(c) – assisting foreign state investigation re violations substantially similar to ss. 6 – 9 CASL violations
● Warrants – s. 19 – also potentially onerous
● Ex parte
● Why permitted – same reasons as under s. 17 Notice to Produce
● Powers of “designated person”
● Examine anything found on site
● Use “any means of communication” found on site
● “Use any computer system” found on site to “examine data contained in, or available to, the system”
● Prepare a document based on the data
● Use any copying equipment
● Remove anything on site for examination/copying
● Prohibit/limit access to all/part of the site