1. Introduction
The first provisions of Canada's Anti-Spam Legislation ("CASL" or the "Act"),1 one of the world's most rigorous antispam legislation, will finally come into force on July 1, 2014.2 While CASL first received royal assent in 2010, it has not yet come into force pending the creation of various clarifying regulations. The initial sections that will come into force relate to the sending of Commercial Electronic Messages ("CEMs"), to be followed by those provisions relating to the unsolicited installation of software, which will come into force on January 15, 2015. Lastly, the sections of the Act allowing for a private right of action against spammers will come into force on July 1, 2017.3
The objective of CASL is to encourage the growth of electronic commerce by promoting confidence and trust in the online marketplace by "effectively [combatting] spam and other related electronic threats". 4 The Act sets out to punish individuals and entities that use spam and malicious software, in an effort to ensure that the significant cost consequences of such disruptive activities are internalized by the parties employing them.5
The impact of CASL on individuals, e-commerce and business, both in Canada and abroad, will be widespread and profound. As Canada aims to become "a leader in anti-spam legislation", organizations that operate in Canada or market to Canadians must take measures to acquaint themselves with CASL and adapt to its requirements.6 The following article provides a high level review of CASL and its regulations in an effort to guide businesses seeking to ensure compliance with this new and aggressive piece of legislation. The article will focus on the earliest of restrictions to come into force (those related to CEMs) and will discuss those provisions of the Act pertaining to the installation of software.
2.CASL's Structure
Simply put, CASL prohibits the sending of CEMs and installation of software on the computers of recipients/owners absent their prior consent. Absent limited exceptions, CASL requires individuals that are the subject of CEMs to actively and expressly "opt in" to receive such email, placing the onus on the sender to seek the recipient's consent to receive CEMs before taking any further action.7
The Act has also been clarified over the past several years by accompanying regulations. The first of these clarifying regulations were prepared by the Canadian Radio-television and Telecommunications Commission (CRTC). The Electronic Commerce Protection Regulations (the "CRTC Regulations") prescribe various content requirements for CEMs and requests for consent. Non-compliance with the CRTC Regulations' content requirements exposes individuals and organizations to substantial liability.8
Additionally, in response to concerns over the onerous obligations and restrictiveness of CASL, Parliament and Industry Canada enacted an additional set of regulations. These Governor in Counsel Regulations, also called the Electronic Commerce Protection Regulations (the "IC Regulations") aim to limit the effect of CASL by providing various exemptions from the express "opt-in" regime or otherwise exclude certain CEMs altogether, some of which are discussed in greater detail below.9
To date, the only meaningful guidance regarding the impact and scope of CASL has been Industry Canada's Regulatory Impact Analysis Statement (the "RIAS"), which was issued along with the IC Regulations. While the RIAS does offer some helpful guidance regarding the interpretation of CASL, and endeavours to offer certain clarification of difficult provisions, it is important to remember that the RIAS ultimately does not have the force of law and thus its usefulness is quite limited.
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Footnotes
1 An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out
commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection
and Electronic Documents Act and the Telecommunications Act, SC 2010, c 23. ["CASL" or "the Act"]
2 James Moore, "Regulatory Impact Analysis Statement", Industry Canada: Electronic Commerce Protection Regulations, online: http://fightspam.gc.ca/eic/site/030.nsf/eng/00271.html. ["RIAS"]
3 Ibid.
4 Ibid at p 1.
5 Ibid.
6 Ibid.
7 "Government of Canada Introduces Anti-Spam Legislation (CASL): Questions and Answers", online: Digital Policy Branch (February 15, 2013) https://www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/gv00521.html
8 Electronic Commerce Protection Regulations, CRTC 2012-183 ["CRTC Regulations"]
9 Electronic Commerce Protection Regulations, 81000-2-175 (SOR/DORS). ["IC Regulations"]
Originally published June 2014
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
