Why your inbox is filling up with messages from businesses, again

A full computer e-mail program inbox is shown in Toronto on Wednesday, Jan.29, 2014. (THE CANADIAN PRESS)

You may have noticed a surge of messages in your inbox from companies seeking permission to continue sending you marketing emails – again.

That’s because another provision of Canada’s anti-spam law is scheduled to come into effect on July 1, and could end up costing offenders a lot more money.

The law will grant a “private right of action” to individuals, meaning that Canadians will be able to sue businesses that seem to be violating spam rules.

Canada’s Anti-Spam Legislation (CASL), which came into effect in 2014, requires that businesses get written or oral consent before they send emails or other digital messages to consumers. Companies must also clearly identify themselves in each message and allow recipients to unsubscribe from digital mailings.

While it seems unlikely that many Canadians will go through the trouble of retaining a lawyer on their own to sue businesses over unwelcome emails, some legal experts say the new provision could prompt a flurry of class-action lawsuits. They also say there’s a lot of uncertainty over how the “right of action” will play out in courts, and what kind of damages companies could be liable for.

David D. Lyons, a partner at the Lerners law firm, which lists commercial litigation among its areas of expertise, said the private right of action could cost a business up to $200 for each electronic message that violates spam rules, up to a $1,000,000 per day.

“Those numbers are certainly making businesses sit up and take notice, I would say,” Lyons told CTVNews.ca. “I’m certainly seeing an increase in the number of inquiries on the topic of CASL.”

The Canadian Federation of Independent Business is also concerned about the upcoming provision, the organization’s vice-president of national affairs told CTVNews.ca.

“We think it’s a fairly strong measure,” Monique Moreau said.

When the anti-spam legislation was first being discussed well over a decade ago, electronic spam was a really big problem in Canada, Moreau said. But today, most email providers are able to filter out spam into separate folders, and companies across the country have spent tens of thousands of dollars to ensure that their email marketing programs comply with CASL, she said.

“When was the last time spam made it into your inbox? It’s pretty infrequent these days. We think adding on this extra layer of legislation is a bit overkill,” she said.

In early February, three different sections of the Canadian Bar Association, which represents lawyers, notaries and academics across the country, asked the government to delay implementing the private right of action provision of CASL until a scheduled statutory review of the entire legislation is completed.

In a letter to Innovation, Science and Economic Development Canada’s digital policy branch, the CBA representatives say the delay would give the government “an opportunity to assess the appropriateness of the private right of action provisions in the context of CASL as a whole.”

In an email to CTVNews.ca, a department spokesperson said the government has been “studying the anti-spam regimes of other jurisdictions around the world, including private right of action provisions” and welcomes input on the Canadian legislation.

“We have received letters from a number of stakeholders including business organizations, consumer advocates and the Canadian Bar Association regarding the private right of action provisions. This conversation is still ongoing,” the email said.

“We are pleased to note that since CASL has been in force, the amount of spam received by Canadians has decreased.”

The current provisions of the anti-spam law have resulted in big fines for some companies over the last two years. Quebec-based Compu-Finder was fined $1.1 million for violating the law in 2015, and Porter Airlines received a $150,000 fine that same year.

Dating website Plenty of Fish was also fined $48,000 in 2015 for breaking spam rules.