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Are you tired of those pesky spam emails clogging your e-mail? Well, brace yourself, if you haven’t given implied or express consent, then the business sending you the spam may be in violation of Canada’s new spam law.
Spam is allowed in only very narrow circumstances, and applies mainly to commercial electronic messages. The Fighting Internet and Wireless Spam Act, also called Bill C-28, was introduced into parliament and passed in December of 2010, to stop the untold amount of spam messages Canadians receive.
Before the passing of the bill, we had the Electronic Commerce Protection Act. However, this act wasn’t very effective in combating spam e-mail, so the government replaced is with Canada’s anti-spam legislation (CASL).
It became law on July 1, 2014. In January 15, 2015, updated rules for installing computer software came into law.
Canada’s anti-spam legislation as it relates to e-mail communications
All communications and messages that go through Canadian servers and sent to or by Canadian companies to clients or others are affected by the act.
In order for a company to send e-mails to individuals, the company must have, at the very least obtained implied consent.
Implied consent means that that the consent is often time-limited to two years from the beginning of the relationship, and there must have been an inquiry about goods or services, or if there is an existing relationship between the business and customer.
You can also give permission to receive these communications by express consent. This means you have actively agreed, whether verbally or in writing, to receive communications from the company. There is no time-limit to this kind of consent. The only exception is where the recipient withdraws consent to receive communications.
Anti-spam legislation for installing computer programs
The act forbids installing computer software on another’s computer or electronic device. Examples include desktops, cell phones, and laptops.
The computer program must be installed in Canada, or the person doing the installing must be located in Canada in order for this legislation to apply.
In order to install a program, the installer has to receive valid express consent from the owner of the electronic device.
In order to receive consent, the installer of the program must tell the owner of the electronic device:
- Why the consent is being sought;
- Give the owner identification information for the installer; and
- What the computer program does and how it functions.
What exactly is forbidden?
- Modification of transmission data in an electronic message which results in the message being delivered to a different destination without express consent;
- Sending of commercial electronic messages without the recipient's consent, including messages to email addresses and social networking accounts, and text messages sent to a cell phone;
- Installation of computer programs without the express consent of the owner of the computer system or its agent, such as an authorized employee;
- Use of false or misleading representations online in the promotion of products or services;
- Collection of personal information through accessing a computer system in violation of federal law; and
- Collection of electronic addresses by the use of computer programs or the use of such addresses, without permission.
There are three government agencies that regulate and enforce the new law:
- The Canadian Radio-television and Telecommunications Commission (CRTC) to issue administrative monetary penalties for violations of the new anti-spam law.
- The Competition Bureau to seek administrative monetary penalties or criminal sanctions under the Competition Act.
- The Office of the Privacy Commissioner to exercise new powers under an amended Personal Information Protection and Electronic Documents Act.
Penalties for Violating CASL
Penalties include steep financial fines. Serious violations of CASL can see an individual being fined for a maximum of $1 million, whereas a business can be fined for a maximum of $10 million.
Private right of action
Under section 51 of CASL, consumers would be able to bring action against businesses and other groups for breaches of CASL related to spam, and awards of up to $1 million per day were allowed.
The legal community believed, as did businesses, that this would lead to many class action suits for non-compliance with CASL, even if no damage was done, as the CASL would allow people to sue for statutory damages.
After complaints from businesses, charities and other organizations, s. 51 was suspended before it came into force in July 2017. It remains suspended as of July 2018.
Canada’s Anti-Spam Legislation
Canada's Anti-Spam Law (CASL) FAQ
Fate of CASL Private Right of Action Unknown