Court of Appeal rules CASL is constitutional and releases decision on the making available right

Dynamic blocking order

The Federal Court of Appeal released two important decisions earlier today. First, in the Compufinder decision, it ruled that Canada’s anti-spam law (CASL) is constitutional. More specifically, if found that CASL does not violate the Canadian Charter of Rights and Freedoms right to freedom of expression. It also found that the law was intra vires within federal jurisdiction.

The finding that CASL dd not violated the Charter is a surprising one  to anyone who understands its scope and impacts on commercial speech. I have long argued, and still believe, that CASL cannot be justified under, and violates, Charter principles.

The Court of Appeal also released a decision which dealt with the interpretation of the making available right (the MAR) implemented by Canada in 2012 to enable canada to ratify the WCT and WPPT Internet treaties. Despite the extensive evidence before the Court on the proper scope of the right, the court declined to construe it. The Court only stated that new “Subsection 2.4(1.1) does not create a new exclusive right and that the new Subsection covers a “preparatory act”.

Compufinder  was represented by McCarthy Tetrault lawyers Barry Sookman, Dan Glover, and Charles Morgan.

McCarthy Tetrault lawyers Barry Sookman and Dan Glover represented Music Canada in the MAR appeal.


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