I thank the committee for inviting me here today. What you are doing is very important. CASL is flawed and needs re-examination.
I am a senior partner with McCarthy Tétrault. I am also an adjunct professor of intellectual property law, and I am on the advisory boards of the Macdonald-Laurier Institute and CIGI. I am here today in my personal capacity.
I have been closely involved in CASL for many years. I appeared before this committee when it first examined CASL, and I pointed out that CASL was so flawed that it would, among other things, literally have made browsing on the Internet illegal.
I worked with officials trying to fix CASL at the committee stage. I was extensively involved in the regulatory process, the first and second consultations on the regulations. I made a personal submission the committee.
I have been extensively involved in advising clients from all sectors of the economy, including large and small businesses, charities, the educational sector and other not-for-profits, the media, and software companies on how to comply with CASL.
I know what's happening on the ground and the impacts CASL is having.
CASL is, and is seen as, complex, disproportionate, and wrongly focused. To be frank, it is ridiculed by many organizations. It is particularly onerous for small businesses.
CASL's overbreadth makes communicating over networks illegal or legally uncertain in countless situations that Parliament could never have intended.
Let me give you a few examples. Take a start-up business that wants to use a public trade directory to email prospective customers and investors. This is most likely illegal under CASL, and it especially hurts small businesses trying to grow and develop new markets. To take another example, a person leaves his or her former employer to start a business or join another business and wants to email former clients, patients, customers, or former colleagues to let them know. Or the person wants to email an old schoolmate the person used to be good friends with. That is illegal under CASL in many cases.
It also deprives individuals of the valuable connections they have, which are important to their livelihoods, and it deprives recipients of information they would want to know. I would want to know if my doctor moved.
Say a charity or not-for-profit wants to continue sending newsletters to someone it has been sending them to even before CASL became law. If the newsletter is funded in part by the inclusion of only one ad, say, a vision correction device ad in a newsletter sent out by the CNIB, the charity likely has to cut off the recipient unless it can find a donation by the person in last two years or a record of obtaining express consent. Records weren't kept before CASL came into being. This deprives individuals, including the most vulnerable, from receiving information they want and need. It is also illegal under CASL to send an email asking people if they want to continue to receive emails, including from the CNIB.
Organizations want to send out Christmas cards to current and former clients, customers, and colleagues. They want to include a corporate logo and tag line promoting the organization. These items by themselves may make these cards CEMs, because they promote their businesses. If the recipients haven't expressly consented to receiving CEMs and haven't done business with the organization in the last two years, the cards likely cannot be sent. So much for Christmas cheer and keeping in touch.
A new online newspaper wants to send trial copies to members of the public. In the physical world, a publisher could leave complimentary copies in mailboxes. It's illegal online if the paper includes a single ad or if it asks people if they want to subscribe. This is especially unfortunate as it hampers establishing new media, something we need to foster in this world of fake news, as a healthy press is critical to our democracy.
There is a business-to-business exception in CASL. It has a number of conditions. It applies to organizations but not to individuals carrying on business as sole proprietorships. CASL operates in a discriminatory way for no good reason—in this case, discriminating and hurting small businesses.
CASL makes it illegal for a child to email neighbours promoting his or her lemonade stand, to ask if they want a babysitter, or to ask if they can mow their grass to earn a little school money. Its breadth is not subject to any de minimis or reasonable limitation. Do you want your kids not to be able to promote their lemonade stands?
A person wants to send a CEM using an SMS. Even if the person has consent to send the message, the person can't legally do it because the character limits don't enable people to include all of the identification and unsubscribe information the CRTC regulations prescribe. The person might try to comply by including a hyperlink in the message to a website, but if the person doesn't have a website—which not every young small business has—and can't find a tool that lets them shorten the hyperlink, they effectively can't use SMS messages. CASL effectively impedes the use of the modern messaging systems it purports to regulate.
These problems all flow from CASL's flawed structure, which prohibits a broad range of communications subject to a limited number of exceptions. The computer program provisions also have many difficulties.
What's happened in the real world and not the theoretical world of those people who conceived of CASL? CASL has had no material impact on the purveyors of damaging and deceptive spam, spyware, malware, and other related network threats, which were the stated objectives of CASL. As a practical matter, the burdens fall on legitimate businesses. Many businesses have invested and continue to expend resources to comply with CASL, and it's not easy for the reasons Natalie Brown explained. Use of electronic messaging is chilled, because organizations don't know if they can send messages, and they are very concerned about the excessive AMPs that can be levied.
What should this committee do?
My most important recommendation for this committee is to assess all the provisions of CASL against the government's justification for it. CASL was repeatedly represented during the legislative process and the regulatory process as a law targeting the most damaging and offensive type of spam and malware, yet these prohibitions target ordinary commercial electronic messages and computer programs that have nothing to do whatsoever with malware.
Given that CASL impairs freedoms of expression in Internet communication, I urge this committee to recommend that CASL be recalibrated to what it was really intended to do, and that is to deal with the really bad actors.
I'll just say one more point because I realize, Mr. Chairman, that you have already given me a substantial indulgence, which I appreciate. If CASL were recalibrated, the CRTC could reallocate resources to deal with the real problems Canadians have. We have a real problem with cybersecurity and a real problem with malware. That should be the focus, not legitimate businesses like Desjardins that want to continue to communicate with their customers.
Thank you, Mr. Chairman.