Canada’s Anti-Spam Legislation

What is the Anti-Spam Legislation

Canada’s new anti-spam law was passed in  December 2010 and, following a Governor in Council order, it will enter into force on July 1, 2014. Once the law is in force, it will help to protect  Canadians while ensuring that businesses can continue to compete in the global marketplace. On January 15, 2015,sections of the Act related to the unsolicited installation of computer programs or software come into force.

When the new law is in force, it will generally prohibit the:

• sending of commercial electronic messages without the recipient’s consent (permission), including messages to email addresses and social networking accounts, and text messages sent to a cell phone;
• alteration of transmission data in an electronic message which results in the message being delivered to a different destination without express consent;
• 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 (e.g. the Criminal Code of Canada); and
• collection of electronic addresses by the use of computer programs or the use of such addresses, without permission (address harvesting).

There are three government agencies responsible for enforcement of the law. When the new law is in force, it will allow:

• 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 theCompetition Act.
• The Office of the Privacy Commissioner to exercise new powers under an amended Personal Information Protection and Electronic Documents Act.

It will also allow all three agencies to share information with the government of a foreign state if the information is relevant to an investigation or proceeding in respect of a contravention of the laws of a foreign state that is substantially similar to the conduct prohibited by this Canadian law.

The law will also allow individuals and organizations who are affected by an act or omission that is in contravention of the law to bring a private right of action in court against individuals and organizations whom they allege have violated the law. Once into force, the private right of action will allow an applicant to seek actual and statutory damages. Statutory damages may not be pursued if the person or organization against whom the contravention is alleged has entered into an undertaking or has been served with a Notice of Violation.

Terminology

Canadian Anti-Spam Legislation (CASL) is designed to protect Canadian consumers from receiving unsolicited Commercial Electronic Messages (a “CEM”). A CEM is any electronic message the purpose of which is to encourage participation in commercial activity. The definition of commercial activity is broad and includes such activity as offering for sale or advertising goods or services. CASL applies to CEM’s sent or received by a computer in Canada. The CASL will be regulated by the Canadian Radio-television and Telecommunications Commission (“CRTC”).

There are three broad prohibitions in CASL:

1. A prohibition against sending a CEM unless the person receiving the message has consented to receiving it and the message is in a prescribed form and content. The prescribed form includes a requirement to identify the sender and its contact information, as well as include an “unsubscribe” mechanism.
2. A prohibition against altering the transmission data in an electronic message so that the message is delivered to a destination other than, or in addition to, that specified by the sender, unless consent or a court order is obtained.
3. A prohibition against installing a computer program on any other person’s computer system which causes an electronic message to be sent from that computer system, unless consent or a court order is obtained. This provision, and the other provisions related to the installation of computer programs, does not come into force until January 15, 2015.

A contravention of any one of the prohibitions can result in an administrative monetary penalty ranging up to $1,000,000 for an individual, and $10,000,000 for any other person.  There is also a separate right for persons affected by the contravention to bring a statutory claim for compensatory damages; this provision, and the others related to the private right of action, will not come into force until July 1, 2017

MailChimp

If you have a email campaign with MailChip, read about what the Canadian Anti-Spam Legislation law here.

Fighting Spam

Read more about how to fight spam and other information from the Government of Canada’s Avoid Spam site.

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