If you thought CASL wasn’t draconian enough, think again. The CRTC’s interpretation of CASL in the new Guidelines on the Commission’s approach to section 9 of Canada’s anti-spam legislation (CASL) (Compliance and Enforcement Information Bulletin CRTC 2018-415) has tightened the noose on Canada’s already speech impairing anti-spam law. Under the Guidelines, intermediaries of all stripes including telecom providers, ISPs, hosting companies, payment processors, advertising brokers, electronic marketers, software and application developers and distributors can be liable for CASL violations of their users – whether these intermediaries even intend or know that their users are using their products or services to violate CASL.
Posts Tagged ‘CASL’
CASL in its present form was a big mistake. The private right of action (PRA) which was scheduled to come into effect July 1, 2017 would have compounded the adverse effects of this flawed, overly-broad, indefensible, and likely unconstitutional law. See, CASL’s private right of action.
The Government strongly signaled today that it is prepared to fix or at least mitigate some of the excessive elements of the CASL regime. This is something that every sector of the Canadian public including charities, not-for profit and educational institutions, private individuals, small, medium and large businesses, retailers, publishers, financial institutions, technology and telecom companies had been asking for even before CASL came into force. See, Canada’s anti-spam law (CASL), too much of a good thing .
This is a guest blog post by Donald Houston and Jonathan Bitran of McCarthy Tétrault LLP.**
While much has been written about the impending CASL private rights of action, less has been said about the new private right of action CASL will tack on to the Competition Act for misrepresentations in electronic messages.
Canada has the most onerous anti-spam/anti-malware law (CASL) in the world. In less than a year, July 1, 2017, it is going to become even worse. That’s when the private right of action (PRA) comes into force.
Since its inception, the anti-spam and anti-malware portions of the Act (ss.6-9) have been enforced by the CRTC. But when the PRA becomes law organizations big and small including charities, small businesses and even children marketing their first lemonade stands – and their officers, directors and agents – could become liable for millions of dollars in penalties.
Last week I received several unsolicited emails including the one shown below asking for a donation to support Republican party leader hopeful John Kasich. The e-mail was sent without the remotest chance of there being an express or implied consent and without compliance with the prescribed information requirements of Canada’s much vilified anti-spam law, CASL.
There is no doubt that Canadians have an important interest in who wins the US Presidential party nominations. Given the importance of the stakes, Canadian residents eligible to make a donation might have welcomed receiving the solicitation.
The CRTC announced yesterday that it bagged another CASL pelt – this time Rogers Media. The company agreed to an undertaking with the CRTC and to pay $200,000 to avoid expensive enforcement proceedings.
Rogers Media allegedly sent commercial emails (CEMs) containing an unsubscribe mechanism that did not function properly or which could not be readily performed by the recipient. In some instances, the electronic address used to unsubscribe was allegedly not valid for the required minimum of 60 days following the sent message. Rogers Media also allegedly failed to honour, within 10 business days, requests from some recipients to unsubscribe from receiving future commercial emails.
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.
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: