Thank you, Mr. Chair.
Honourable members, on behalf of the Desjardins Group, thank you for inviting us to testify before your committee.
I am pleased to be here today to talk about something as important as the review of Canada's anti-spam legislation, that I will call CASL. It is an important piece of legislation for our industry, and it has a considerable impact on how we communicate with our members and clients.
As the Chair said, my name is Aïsha Fournier Diallo. I am senior legal counsel with the Desjardins Group, more specifically with its subsidiaries in property and casualty insurance that do business across Canada. My job is to support the validation of the legal risks associated with Canada's anti-spam legislation. Naturally, we are called upon to interpret the legislation every day.
Let me introduce Natalie Brown. She is the director of the caisse network and she leads a team that deals with credit card services, payments and litigation.
Although my remarks will be mostly in French, we will be happy to answer your questions in both languages.
First, I will say a quick word about the Desjardins Group because I would like to move on to CASL.
It was here, in Ottawa, that the idea for the Desjardins Group was born. Right next door, across the road, Alphonse Desjardins was a Hansard reporter for more than 25 years. After a debate on loan sharking, he got the idea to found a co-operative financial group that would address the needs of smaller depositors.
Today, 117 years later, the Desjardins Group is the largest co-operative financial group in Canada, and the 6th largest in the world, with assets of over $270 billion.
Our close to 1,100 caisses and financial centres in Quebec and Ontario, together with our online platforms and subsidiaries from coast to coast to coast, serve over seven million members and clients. It should be noted that a third of our service centres are located in less densely populated areas.
From heritage to insurance management, including business services, the group employs just under 48,000 employees and 5,000 managers.
That said, I would like to say what a pleasure it is to be among you today, honourable members, to share with you my point of view.
I came to Desjardins as a lawyer in 2013, about one year before the legislation came into force. I was able to witness the impact it had on what we do and how we communicate with our members and clients.
People's expectations towards communications have changed. Our modes of communication have also changed. Clients expect us to reach out to them in the most natural and effective way possible. You have to put yourself in the shoes of the consumer, which we do every day since we are in contact with them. They want emails and texts, and are looking for an easy way to connect with us.
This is why organizations should be able to communicate with their clients and their members without having to constantly worry about whether they are violating a section of Canada's anti-spam legislation. With every message we send, we have to ask: does my email or text comply with the law? Is it a commercial electronic message, a CEM? Do I have the necessary valid consent to send it? Is it excluded under the legislation? Is the prescribed information included in the email?
Imagine having to do this every single time you send an email to a member or client.
In the past, the government said, “Canadians deserve an effective law that protects them from spam and other electronic threats that lead to harassment, identity theft and fraud.” As Mr. Smith said, no one is against this. However, the law is far too broad.
People, like ourselves for instance, who work everyday with this legislation while trying to support our business operations have been anxiously waiting for this review. We hope that the government will take advantage of this opportunity to undertake an in-depth review of this legislation so that it may achieve its goal, while at the same time finding a balance that will allow organizations that have legitimate reasons to communicate with their clients to do so without fear and with the benefit of more streamlined legislation.
CASL is one of the most restrictive pieces of anti-spam legislation in the world. It was a great idea, protecting Canadians from spam. No one likes spam. But in our view, there has been a chilling effect on marketing and business communications, primarily for four reasons: the lack of clarity and the interpretive issues that exist in the act that require either clarification or amendments to the law; the fact that it is an opt-in consent model piece of legislation, meaning that you need an express or implied consent to send commercial electronic messages; the incredibly steep administrative penalties that the CRTC can impose for violations of the act; and the possibility of lawsuits from consumers through the private right of action.
The interpretive issues and lack of clarity make it difficult for lawyers like us to provide firm advice to their clients and for clients to be confident that they are in compliance with the law. There is no room for error under CASL, and all are extremely cautious, therefore missing opportunities to communicate with the clients for legitimate reasons, particularly in the one-on-one context. It should be easy for small businesses and larger ones to understand CASL and to apply it.
I am going to give an overview of the major interpretive issues we have faced these past few years, and we will provide you with a brief explaining them in greater detail, because there are quite a few.
First of all, the definition of a “commercial electronic message” is so broad that it includes practically any commercial message, even if the message is sent to a client with whom we have a perfectly legitimate commercial relationship.
As I said earlier, with every message, its content and the context in which it is sent have to be considered. You need to be aware of things like hyperlinks in the emails, clickable logos, in short, anything that could be seen as promoting the image of whoever is sending the email, and that includes a lot of things. For example, the fraud prevention email we would like to send to our members and clients could be considered a CEM because of the hyperlinks it includes. If a hyperlink leads to our website where our products and services are advertized, we have to ask whether it compromises the email by turning it into a CEM, which is prohibited.
The fact that our clients have to consult us before they send an email to their clientele with every new initiative and new campaign or innovation complicates things a great deal. We need more clarity to make sure that the nature of the messages we send, like the fraud prevention email, cannot be misinterpreted, even if they include hyperlinks, logos or elements that promote the Desjardins Group.
We feel it necessary to clarify the definition of CEM and to relate it back to the legislation's original purpose, which is to protect consumers from spam and the electronic threats that could lead to harassment, identity theft and fraud. Essentially, we need the assumption to be that Canadian companies have no ill intent when they communicate with their clients, and focus rather on the truly problematic communications.
I am now going to talk to you about the notion of consent and related provisions. As you know, the law requires express and implicit consent. Some of the provisions around implicit consent are a bit murky, and as a large financial group, we need to know who can benefit from this consent. Therefore, we recommend an opt-out option, that way, we would administer an unsubscribe mechanism instead of getting bogged down with consent management.
There is still one more area I want to cover. Earlier, Mr. Smith mentioned that subsection 6(6) is unclear. Indeed, some emails that shouldn't even qualify as CEMs are prohibited under this subsection.
Finally, I would like to mention the private right of action provision. We are very happy that it was suspended and we think it should be completely struck from the act. As a regulatory body, the CRTC can interpret the act. We believe that it is better to defer to such a body on matters of interpretation instead of overwhelming the courts.
I would like to thank you once again for inviting us to testify today. I sincerely believe it is possible to find a balance that would allow organizations to communicate more freely with their clients while at the same time protecting the interests of Canadians.