Canada’s anti-spam law (CASL) requires a person installing updates or upgrades to computer programs on another person’s computer system to obtain an express consent. This can be a challenge. If a person is able to get a consent to the installation of the program before installing it, the person can get consent to the installation of the update or upgrade at that time. The person cannot get consent for updates or upgrades that require enhanced disclosure under s.10(5) of CASL at that time, unless, of course, the person knows about them and can get a consent for them in advance.
The computer program provisions in Canada’s anti-spam law (CASL) are very hard to apply in practice. One of the most difficult interpretive challenges involves determining what the phrase “install or cause to be installed” means. CASL only applies where a person installs or causes to be installed a program on someone else’s computer. The CRTC released a Guideline that attempts to clarify what CASL means by that phrase. In information sessions last week to IT.Can and ITAC members, Dana-Lynn Wood and Lynne Perrault of the CRTC attempted to provide even further guidance on this issue. However, after fielding a series of questions on the issue, they agreed the issue was still unclear and that it was necessary for them to give further consideration to the issue.
I have argued many times on this blog that Canada’s anti-spam law (CASL) would not survive a Charter challenge. It’s “ban all” approach to regulating commercial speech, with limited exceptions, cannot be justified. Professor Emir Crowne, Associate Professor, University of Windsor, Faculty of Law, just published a paper together with Stephanie Provato agreeing with this opinion, Canada’s Anti-Spam Legislation: A Constitutional Analysis, 31 J. Marshall J. Info. Tech. & Privacy L. 1.
The abstract of the article says the following:
The Supreme Court released a landmark decision earlier this week in the case Bhasin v. Hrynew, 2014 SCC 71. The case is a very important one for all lawyers involved in negotiating, advising on, and enforcing contracts. This includes IT lawyers who are regularly engaged in complex tech transactions.
The decision establishes two new common principles that will apply to all contracts. First, there is a new “general organizing principle of good faith contractual performance”. Second, as a manifestation of this principle, there is a further common law duty of parties to a contract “to act honestly in the performance of contractual obligations”.
This week has been eventful on the CASL front with the CRTC providing guidance on how it is likely to interpret CASL’s computer program provisions. Monday evening the CRTC published a new guideline on the interpretation of CASL. This was followed by a presentation given to IT.Can members by Andy Kaplan Myrth of Industry Canada and Dana-Lynn Wood and Lynne Perrault of the CRTC. The presentation was a follow-up to an earlier IT.Can meeting where the CRTC asked for and received a list of questions for which guidance is being sought by the public. This information session was part of a cross country tour by the CRTC to provide information to the public about CASL.
The Digital Privacy Act (Bill S-4) will make significant changes to Canadian privacy law when it is enacted. The amendments to PIPEDA have been in the making since 2007 following the statutory review of PIPEDA by the Standing Committee on Access to Information, Privacy and Ethics. The Bill has passed the Senate and was referred to the Standing Committee on Industry, Science and Technology. The INDU Committee will begin considering the Bill on November 25, 2014.
Got any plans for October 20-21? If not, you might want to go to IT.Can’s 18th Annual Conference. If you are an IT lawyer looking for a fabulous program and rich networking opportunities, it doesn’t get better. The speakers are leaders in their fields from Canada and abroad. I am proud to note that three of my partners will be speakers at the conference: Dan Logan (Mobile Payments Technology Issues), Charles Morgan (The Current State of Net Neutrality) and George Takach (keynote luncheon speaker, “A Digital Strategy for Canada”).
The program is in Montreal this year. You can get more information about the program from the brochure.
With the computer program sections of Canada’s anti-spam/anti-malware law (CASL) coming into force in January 2015, the CRTC has now started reaching out to the public for questions they want guidance on in FAQs or bulletins. I attended such a session last week (on September 9, 2014) at an IT.CAN Public Affairs Forum Roundtable. The attendees were Dana-Lynn Wood (Senior Enforcement Officer, Electronic Commerce Enforcement, CRTC) Kelly-Anne Smith (Legal Counsel, Legal Sector CRTC), and Andre Leduc (Manager of the National Anti-spam Coordinating Body, Industry Canada).
The Supreme Court granted leave to appeal today in another copyright case, Canadian Broadcasting Corporation / Société Radio-Canada v. SODRAC 2003 Inc. The appeal is from the decision of the Federal Court of Appeal which ruled that broadcasters must pay royalties for ephemeral recordings in accordance with the 1990 decision of the Supreme Court in Bishop v. Stevens.
Online vendors will be interested in a recent decision of an Ontario court in Hazjizadeh v Canada (Attorney General), 2014 CanLII 48552 (ON SCSM). In the ruling the court held that online advertisers owe a duty of care to prospective purchasers to ensure that their representations are true and not misleading. If they breach this duty, they may be held liable in negligence for online statements which induce purchasers to engage in transactions.