Posts Tagged ‘canada’s anti-spam law’

CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline

January 14th, 2015

The “anti-spam” portion of Canada’s anti-spam/spyware law (CASL) came into on July 1, 2014. The “malware/spyware” computer program provisions come into force on January 15, 2015.

Most organizations are having very difficult times adapting to CASL’s confusing and prescriptive rules. According to a recent mini-survey conducted by the Canadian Chamber of Commerce of over 160 of its members, from responses to questions answered over 90% of Canadian organizations believe that CASL should be scrapped, amended, or at least be subject to a Parliamentary review before it becomes law. Over 80% believe it will not be effective against the most harmful sources of spam. 63% believe that it will make business more difficult for them.  Most believe CASL’s consent, disclosure and unsubscribe requirements are disproportionate and unreasonable. 56% believe CASL will impede the creation of a business environment driven by entrepreneurs that encourages jobs, growth and long term prosperity for Canadians.

CASL: when is a computer program installed or caused to be installed according to the CRTC

November 18th, 2014

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.

CASL’s inscrutable computer program provisions to be tackled by CRTC 

September 18th, 2014

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).

Michael Geist’s defense of Canada’s indefensible anti-spam law CASL

July 14th, 2014

Michael Geist loves Canada’s anti-spam law (CASL). He was one of the first witnesses called by the Government to support it (then Bill C-27) when it came before the Standing Committee on Industry, Science and Technology. He told the Committee to resist attempts to change it. He later urged Minister Moore not to listen to the tsunami from across all sectors of Canadian society to fix CASL calling the criticisms Festivus grievances, Now that CASL is law and the public is ridiculing it calling it, among other things, a Monty-Python-esque farce and Spamaflop, deeply stupid,  and a sledgehammer that is ludicrous regulatory overkill, he once again tries to defend it. If anyone could defend CASL, it would be Michael Geist. However, CASL is indefensible and his attempts to defend it clearly show there is no policy basis on which it can be justified and that It should be scrapped or amended.

CASL’s effect on small business

June 21st, 2014

Many businesses are in the midst of trying to become CASL compliant. They hate it. As I explained in a previous post, CASL will hit the SME sector very hard. According to a recent article about it in the Globe:

Marketers big and small facing this legislative change are criticizing it as costly to implement, penalizing to small businesses, and not targeted enough at the spammers who are the real problem in the world of e-mail advertising.

CASL clarified by CRTC at information sessions

June 8th, 2014

The CRTC has published materials recently used in public Information Sessions on Canada’s Anti-Spam Legislation (CASL). The materials consist of a video and transcript of one of the information sessions as well as slides. The transcript did not include answers given to questions from the public at the information sessions.

Much of the information provided had already been published by the Commission. However, some of the information was new or had elements that were new. The following are some examples.

CASL: insights into Canada’s anti-spam law at the Lexpert conference

May 6th, 2014

Last Wednesday I had the pleasure of chairing a conference on Canada’s anti-spam/spyware law (CASL). The Lexpert conference covered the anti-spam, computer program and Competition Act aspects of the new law. The speakers brought useful insights into interpreting CASL and its regulations as well as practical guidance on implementing compliance programs. The slides from some of the speakers are set out below.

The conference was attended by Philip Palmer, a former Justice Canada lawyer and one of the individuals who played a lead role in drafting CASL and the initial regulations. He was on an “Ask the Experts” panel with David Canton and I. In the course of the conference and during the panel discussion he provided some helpful personal opinions about CASL that are worth sharing. Among them:

Canada’s anti-spam law CASL applies to you even if you aren’t in Canada

March 1st, 2014

I got a call this week from a client asking if Canada’s new anti-spam/anti-malware legislation (CASL) applies to non-Canadian organizations. (It was one of the plethora of calls I got this week on CASL.) When I answered that CASL did indeed apply extra-territorially I was confronted with one of the many gasps of frustration I have also been encountering recently with this law (which several years ago I dubbed Canada’s Anti-Speech Legislation (CASL) because of its major chill on legitimate electronic messages).

CRTC FAQ on CASL

December 18th, 2013

The CRTC just released a new FAQ on CASL. It contains little that is new and repeats much of what it had been previously said including in its two Guidelines. The focus of the FAQ are the anti-spam prohibitions. Some highlights are.

Disclaimer

These FAQs have been prepared by Commission staff in order to provide general information with respect to commonly posed questions about Canada’s Anti-Spam Legislation (CASL). This material is not to be considered legal advice, nor does it reflect a decision, policy or interpretation of CASL and/or its accompanying regulations, by the Commission, Office of the Privacy Commissioner, the Competition Bureau or, Industry Canada. Please note that this information may be subject to change.

The Industry Canada CASL regulations and RIAS: a lost opportunity

December 16th, 2013

If it was not clear enough before that there are many problems with CASL, it became evident when Industry Canada released the final regulations and the Regulatory Impact Analysis Statement (the RIAS). CASL takes an extremely broad “ban all” approach to regulating commercial messages and the installation of computer programs. This structure makes the exceptions particularly important because every CEM sent without consent (and following the prescribed rules) and every computer program installed on any computer (machine or device) without consent (and making the required disclosures) as part of a commercial activity will be illegal. The regulations purport to address some of the major necessarily inadvertent consequences with CASL’s breadth and structure.  See, CASL Industry Canada regulations: summary and comments. However, they fall short in many very important respects.