Barry Sookman
  • Bio & expertise
    • Bio
    • Technology & Internet Lawyer
    • Copyright and Intellectual Property Lawyer and Litigator
    • Privacy & CASL
    • Government Relations
    • Rankings
  • Books & Articles
  • Speeches & Media
  • Terms
    • Privacy Policy
This site is about technology, copyright, and privacy Law
Barry Sookman
Barry Sookman
  • Bio & expertise
    • Bio
    • Technology & Internet Lawyer
    • Copyright and Intellectual Property Lawyer and Litigator
    • Privacy & CASL
    • Government Relations
    • Rankings
  • Books & Articles
  • Speeches & Media
  • Terms
    • Privacy Policy
Subscribe
  • CASL

Supreme Court denies Compufinder leave to appeal in CASL Charter and constitutional challenge

  • March 4, 2021
  • Barry Sookman
Total
0
Shares
0
0
0

Earlier this morning the Supreme Court of Canada denied Compufinder leave to appeal  the decision of the Federal Court of Appeal in the CASL Charter and constitutional challenge in 3510395 Canada Inc. v. Canada (Attorney General), 2020 FCA 103. CASL is the unofficial name for Canada’s much maligned anti-spam (and malware) law, a law that many information technology and privacy lawyers believe should be scrapped.

The issues in the case were summarized by the Supreme Court as follows:

Constitutional law — Division of powers — Parliament’s general trade and commerce power — Charter of Rights and Freedoms — Freedom of expression — CRTC and Federal Court of Appeal finding anti‑spam legislation intra vires Parliament’s power and constitutional — Whether ubiquity of online commerce is a “constitutionally significant transformation” bringing regulation of all commercial electronic messages within Parliament’s general trade and commerce power under s. 91(2) of the Constitution Act, 1867 — What makes internet speech “commercial” for purposes of the freedom of expression guaranteed in s. 2(b) of the Charter — If commercial electronic message provisions under the anti-spam legislation are constitutionally valid, what is proper scope of exceptions to its prohibitions of commercial electronic messages sent without prior consent.

Canada’s anti-spam legislation came into force in 2014: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio‑television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23 (CASL ). It provides for the regulation of certain forms of commercial conduct relating to electronic commerce (e‑commerce), most notably the sending of commercial electronic messages (CEMs).

The applicant, 3510395 Canada Inc. was issued a Notice of Violation (NOV) under CASL alleging it had not obtained recipients’ consent prior to sending the CEMs in question. The NOV also alleged that some of the CEMs did not contain a functioning “unsubscribe” link. The NOV imposed a $1,100,000 administrative monetary penalty.

Two related constitutional and compliance and enforcement decisions of the Canadian Radio‑Television and Telecommunications Commission were issued. The CRTC determined that the CASL was intra vires Parliament’s trade and commerce power under s. 91(2) of the Constitution Act, 1867 and that its infringement of freedom of expression pursuant to s. 2 (b) of the Canadian Charter of Rights and Freedoms was justified under s. 1 . The CRTC also dismissed claims under ss. 7 , 8 and 11 of the Charter . In the second decision, the CRTC found that the applicant company had committed four violations under CASL and imposed a $200,000 penalty.

The applicant company appealed the CRTC’s decisions to the Federal Court of Appeal. Both appeals were dismissed.

For some of my views and criticisms about CASL including its constitutionality and its flawed approach to Internet regulation, see:

  • CASL Spamaflop not constitutional
  • CASL and Freedom of Expression –The Writing Is on the Wall
  • Legislative and Judicial Approaches to Internet Regulation: CASL as a case study
  • Michael Geist’s defense of Canada’s indefensible anti-spam law CASL
  • COVID-19 and Canada’s anti-spam law CASL
  • CRTC’s troubling guidelines on CASL accessorial liability
  • CASL: my appearance before the INDU Committee
  • CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline
  • Evaluating the Industry Canada CASL regulations: how to assess them

The Compufinder Memorandum of Argument and Reply in support of granting leave to leave appeal can be accessed here and here.

Compufinder is represented by McCarthy Tetrault lawyers Barry Sookman, Dan Glover, Adam Goldenberg, Charles Morgan and Natalie Kolos.

Related

Total
0
Shares
0
0
0
0
Related Topics
  • CASL charter challenge
Previous Article
information technology lawyer
  • contracts
  • IT agreements

Why you need a good information technology lawyer for complex IT agreements: CIS v IBM

  • March 1, 2021
  • Barry Sookman
View Post
Next Article
what the CPPA means for you
  • CPPA
  • Presentations
  • Privacy
  • Uncategorized

Crestview panel on what the CPPA means for Canadians

  • March 4, 2021
  • Barry Sookman
View Post

Subscribe

Subscribe now to our newsletter

You May Also Like
Dynamic blocking order
View Post
  • CASL
  • Copyright
  • making available right

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

  • Barry Sookman
  • June 5, 2020
View Post
  • CASL
  • Charter of Rights

COVID-19 and Canada’s anti-spam law CASL

  • Barry Sookman
  • April 24, 2020
View Post
  • CASL
  • Uncategorized

CRTC’s troubling guidelines on CASL accessorial liability

  • Barry Sookman
  • November 7, 2018
View Post
  • CASL
  • click wrap agreement
  • Computer & Internet Law Update
  • conflicts of laws
  • Copyright
  • data protection
  • E-commerce
  • hyperlinking liability
  • Internet defamation
  • internet jurisdiction
  • ISP Liability
  • IT Contracts
  • jurisdiction
  • Limitations of liability
  • making available right
  • Piracy
  • Presentations
  • web wrap agreement

Developments in computer, Internet and e-commerce law: the year in review (2017-2018)

  • Barry Sookman
  • June 14, 2018

Leave a ReplyCancel reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Subscribe

Subscribe now to our newsletter

Barry Sookman
This site is about technology, copyright, and privacy Law

Input your search keywords and press Enter.

We may be using cookies to give you the best experience on our website.

 

Barry Sookman
Powered by  GDPR Cookie Compliance
Privacy Overview

This website may use cookies so that we can provide you with the best user experience possible. Cookie information is stored in your browser and performs functions such as recognising you when you return to our website and helping our team to understand which sections of the website you find most interesting and useful.

Strictly Necessary Cookies

Strictly Necessary Cookie should be enabled at all times so that we can save your preferences for cookie settings.

If you disable this cookie, we will not be able to save your preferences. This means that every time you visit this website you will need to enable or disable cookies again.