Non-Canadian Companies are Not Safe from CASL: Law Firm
By Ken Magill
It would be nice if only Canadian companies were forced to stew in the crap foisted upon them by their country’s recently enacted stupidest anti-spam law in the history of the world.
Alas, the rest of us are stewing in it, too. The only question is who outside Canada will end up getting boiled.
As David O. Klein from the law firm of Klein Moynihan Turco LLP recently explained in an article on Mondaq.com:
The short answer is that, depending upon the circumstances, CASL can be enforced not only against U.S. businesses, but their officers, directors and agents as well.
My Company is Located in the U.S., Are We Subject to CASL under the Safe Web Act?
Yes. For the first three years following its effective date, enforcement will come exclusively through the efforts of the Enforcement Agencies. Such enforcement will most likely be in the form of injunctions, seizure of assets held in or passing through Canada, as well as joint efforts between the Federal Trade Commission and the Enforcement Agencies. Of particular note, in December 2012, President Obama signed into law an extension of the Safe Web Act of 2006 (the "Safe Web Act"). The Safe Web Act allows the FTC to share confidential information in its files with foreign regulators, to conduct investigations and obtain evidence on behalf of its foreign counterparts. It further authorizes foreign staff exchange programs and expenditure on joint projects. By mid-2012, the FTC had provided evidence in response to sixty-three information sharing requests to seventeen foreign law enforcement agencies in nine countries. Since Canada is the U.S.' most active partner in combating fraud, we can expect substantial cooperation between the FTC and the Enforcement Agencies.
Is There a Private Right of Action Under CASL?
CASL will allow individuals to file private and class action lawsuits to collect statutory damages beginning on July 1, 2017. Because the CASL requirements are so broad, so strict and so easily violated, we expect to see a flood of CASL-specific class action lawsuits. In theory, Canadian plaintiffs can bring class action lawsuits in the state where the U.S. business is incorporated or has a principal place of business, or even in Canada, under the theory that the U.S. business purposely availed itself of jurisdiction in Canada by sending CEMs into Canada. Canadian judgments can (assuming proper personal and subject matter jurisdiction existed in the underlying action) generally be enforced in the U.S. pursuant to the Uniform Foreign Money Judgments Recognition Act.
Private right of action and the ability to reach beyond Canada’s borders to target individual executives with a “so broad, so strict and so easily violated” law: What can possibly go wrong?