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.
Posts Tagged ‘CRTC’
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 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.
Philip Palmer, a former specialist practitioner at Industry Canada Legal Services and the person who oversaw the development of CASL and its regulations, just published an important blog post, CRTC CASL Guidelines: Do they Compromise Adjudicative Independence? In the post, he questions whether the CRTC should be publishing enforcement guidelines in the name of the Commission in view of the important adjudicative role that the Commission also has in enforcing CASL.
In part, he says the following:
Earlier today, Andrea Rosen, Chief Compliance and Enforcement Officer at the CRTC and Lynne Perrault, Director – Electronic Commerce Enforcement Division, Compliance and Enforcement Sector of the CRTC, gave a talk to the ITAC Legal Affairs Forum in Toronto. The subject was the Commission’s plans for enforcement of CASL. Ryan Caron, manager of e-commerce enforcement from the CRTC participated by phone.
The following are some highlights from the talk.
- The CRTC has hired staff and has the capability to engage in computer forensics and cyber investigations. It is establishing a lab to aid in enforcement. The SPAM reporting centre will also be run out of the CRTC.
This morning, the Supreme Court of Canada will begin hearing an appeal from the decision of the Federal Court of Appeal in the so called “value for signal” case. The Court of Appeal, in a split decision, ruled that the Broadcasting Act empowers the CRTC to establish a regime to enable private local television stations to choose to negotiate with broadcasting distribution undertakings a fair value in exchange for the distribution of the programming services broadcast by those local television stations.
On March 5, 2012 the CRTC finalized its set of regulations for Canada’s new anti-spam bill, CASL. These regulations were revised following extensive consultations held separately by the CRTC and Industry Canada on previously published regulations. These consultations resulted in extensive recommendations for changes by more than 57 organisations.
Industry Canada is still considering what changes to make to its draft regulations. Unlike the CRTC, it intends to publish a new set of draft regulations, possibly next month, for comment before finalizing them. The bill will not be proclaimed into force until the Industry Canada regulations are finalized and the public is given some time to implement the processes needed to comply.
Later this morning the Supreme Court will hear arguments in the Alliance of Canadian Cinema, Television & Radio Artists, et al. v. Bell Aliant Regional Communications, LP, et al. case. The central issue in the case is whether the Federal Court of Appeal erred in holding that retail ISPs are not broadcasting undertakings subject to regulation by the CRTC when they provide access through the Internet to broadcasting requested by end users.
The decision of the Federal Court of Appeal being appealed from is Canadian Radio-television and Telecommunications Commission (Re), 2010 FCA 178. The factums of the parties can be found here. The case will be webcast by the court and will be available here.
The Supreme Court of Canada granted leave this morning to Cogego and other telcos to appeal the “value for signal” decision of the Federal Court of Appeal. The question in the case is whether the CRTC has the jurisdiction, under its mandate under the Broadcasting Act to establish a system allowing private local television stations to choose to negotiate with broadcasting distribution companies a fair value in exchange distribution of programming services distributed by the local television stations?
The Supreme Court has summarized the case as follows: