CASL Spamaflop not constitutional

November 17th, 2014 by Barry Sookman Leave a reply »

I have argued many times on this blog that Canada’s anti-spam law (CASL) would not survive a Charter challenge. It’s “ban all” approach to regulating commercial speech, with limited exceptions, cannot be justified.  Professor Emir Crowne,  Associate Professor, University of Windsor, Faculty of Law, just published a paper together with Stephanie Provato agreeing with this opinion, Canada’s Anti-Spam Legislation: A Constitutional Analysis, 31 J. Marshall J. Info. Tech. & Privacy L. 1.

The abstract of the article says the following:

On December 15th, 2010, the Government of Canada agreed to BillC-28, the Fighting Internet and Wireless Spam Act, with the intent to “deter the most damaging and deceptive forms of spam… from occurring in Canada and to help to drive out spammers.” Canada’s Anti-Spam Legislation (“CASL”) was born. Although CASL has only been in force since July 1st, 2014, we argue that the Act may not survive constitutional scrutiny as it unduly restricts freedom of speech.

Their arguments were summarized as follows:

CASL is unconstitutional. It encroaches upon constitutionally protected speech, and it does so in a non-minimally impairing way.

First, CASL‟s exemptions for family and personal relationships restrict valid, effective, and harmless communications and interactions between innocent parties. Second, CASL has negative and hindering effects on small and medium-sized business. Third, CASL‟s definition of CEMs is vague, broad, and all encompassing, casting a wide net, which catches many valid commercial activities.  Lastly, CASL is too onerous to comply with, and fails to delineate the boundaries of prohibited behavior.

CASL is therefore a disproportionate response to the growing problem of spam and electronic threats, and it may have the reverse effect on its goal of increasing confidence in the use of the Internet to communicate and conduct business.

Although the Supreme Court of Canada has held that deference should be given to Parliament if it has chosen a reasonable solution to a complex social problem. This is not one of such occasions. CASL cannot be saved by its exemptions because they do not offer an efficient response to the concerns and constitutional issues that the legislation faces. The proposed exemptions and regulations do not provide clear guidance and impose onerous standards for compliance with the legislation; they create more questions and concerns than they seek to resolve, while contributing to the broad and burdensome consequences of its application. While some restrictions are justified, CASL is overbroad and resembles too closely to a complete ban. RJR MacDonald Inc. v. Canada (Attorney General) supports the position that overbroad restrictions, limiting more expression than is required to advance a pressing and substantial purpose, cannot be justified, and thus the goal should be advanced with a narrower law.

CASL, in its present form, has been ridiculed by the press which has called it, among other things, a Monty-Python-esque farce and Spamaflop, deeply stupid, and a sledgehammer that is ludicrous regulatory overkill. It cannot be justified on any policy basis, even by its most ardent supporters.  It is time that this legislation either be killed by the courts or amended by the Government. Professor Crowne’s article is more evidence that CASL’s framework cannot be justified in a free and democratic society.

For more information about CASL, see  CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline.

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