Private action, public law

witchcraft trial
A depiction of a 17th-century criminal trial, for witchcraft in Salem (Wikipedia)

Recently, the Canadian government decided to remove a provision from the Canadian Anti-Spam Legislation (CASL) that sent shivers through the minds of virtually anyone in business conducting email marketing. The “right to private action” has been suspended. The rules, as originally intended in the legislation, would have allowed private class action lawsuits suits against businesses which violated CASL.

The fear (and government’s decision to remove the provision) were quite justified. Marketers feared “vulture lawyers” would seek out violations of the legislation — which impose extremely stringent standards on e-commerce — and threaten lawsuits. Most businesses, under fear of massive fines, would “cave” and pay settlements — and hope that none of their employees inadvertently sent commercial emails to potential clients, against the rules.

The “private action” issue of course complicates lives for anyone in marketing and business. Lawsuits are messy and expensive affairs. Most of us have never experienced the process. I’ve only encountered it once, back in 1996-7, when a competitor decided to try to take me out and I resisted. However, the day the process server delivered the $1 million statement of claim, I shivered, until (on referral) I met my new litigation lawyer.

Within 20 minutes, after I summarized the situation, he said: “You don’t need to worry. I rarely encounter clients who are totally in the right. There are legal provisions regarding interference in contract. It will cost you some money, but you will be okay.” In the end, the litigation cost my business $20,000 — but thankfully (as the lawyer advised) the company was cleared and costs were awarded to my favour.

Nevertheless, frivolous and manipulative lawsuits are more common than not, and evil business people use the threat of litigation to get their way against unsuspecting competitors. If private action right are baked into statute law, then the fear steps up a few notches.

Is there a solution to this type of challenge? The answer, in my opinion, is simple. If you play by the rules, if you conduct your business with integrity, you should not worry too much. In the CASL case, enough businesses saw the potential problems with the legislation and were able to present the case to the government that the private action provisions would carry much more risk than benefit to the economy and legal system. In my case, I decided to resist an evil business opponent who abused legal provisions to get his way. The lawyer I selected quickly observed these facts and (thankfully) so did the judge.

The question you should ask yourself when you make a business decision is simple: Is it right? Almost none of us are perfect (certainly not me) and I can’t say we’ve done everything with perfect ethics and integrity over the years — but the goal to provide service to our clients and if they are not satisfied to make it right for them has always been in place. Private action has its place in public law, but should never be allowed to be abused by legal vultures.

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