Category: CASL

Court of Appeal rules CASL is constitutional and releases decision on the making available rightCourt of Appeal rules CASL is constitutional and releases decision on the making available right



The Federal Court of Appeal released two important decisions earlier today. First, in the Compufinder decision, it ruled that Canada’s anti-spam law (CASL) is constitutional. More specifically, if found that CASL does not violate the Canadian Charter of Rights and Freedoms right to freedom of expression. It also found that the law was intra vires within federal jurisdiction.

The finding that CASL dd not violated the Charter is a surprising one  to anyone who understands its scope and impacts on commercial speech.

COVID-19 and Canada’s anti-spam law CASLCOVID-19 and Canada’s anti-spam law CASL



Since going into social isolation and working from home I have been inundated by unsolicited emails. Many of these are from businesses I have never heard of or dealt with before. They offer goods or services that directly or indirectly relate to the COVID19 pandemic – how to get stuff delivered to your house, how to order that, how to entertain your kids, how to get virtual care, how to stay connected…. Many of these messages come from organizations trying to survive during this crisis, businesses announcing an adapted online or virtual business model, organizations truly trying to be helpful, or attempting to be relevant and discovered.

CRTC’s troubling guidelines on CASL accessorial liabilityCRTC’s troubling guidelines on CASL accessorial liability



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.

Developments in computer, Internet and e-commerce law: the year in review (2017-2018)Developments in computer, Internet and e-commerce law: the year in review (2017-2018)



I gave my annual presentation today to the Toronto computer Lawyers’ Group on “The year in review in Computer, Internet and E-Commerce Law”. It covers the period from June 2017 to June 2018. The developments include cases from Canada, the U.S. the U.K., Singapore, Australia, and other countries.

The developments are organized into the broad topics of:

  • Jurisdiction/Online Remedies/Conflicts of Laws
  • Hyperlinks/Search Results/Computer Generated Content
  • e-Commerce & Online Agreements
  • Technology Contracting
  • Privacy
  • Copyright
  • CASL.

The cases referred to are listed below.

Canadian government response to copyright and digital policy issuesCanadian government response to copyright and digital policy issues



The Internet and other digital technologies are transforming the everyday lives of all Canadians. The pace of change requires our legislative frameworks to be continually reviewed and adapted to these changing needs. The current government is tackling these challenges on numerous fronts including most recently in respect of copyright, anti-spam law (CASL), and privacy.

Copyright

The government has now started its mandatory review of the Copyright Act. The review was proceeded by a letter from Minister Bains and Heritage Minister Joly, both of whom share the copyright file, which provided some guidance to the INDU Committee.

CASL: my appearance before the INDU CommitteeCASL: my appearance before the INDU Committee



I had the privilege of appearing before the INDU Committee studying CASL yesterday. Here are my speaking notes. You can listen to the proceedings via ParlVU.

______________________

I thank the Committee for inviting me here today. What you are doing is very important. CASL is flawed and needs re-examination.

I am a senior partner with the law firm McCarthy Tetrault. I am also an Adjunct professor of intellectual property law at Osgoode Hall Law School and am on the advisory boards of the think tanks Macdonald Laurier Institute (MLI) and CIGI.

CASL Private Right of Action delayed and Government to review CASLCASL Private Right of Action delayed and Government to review 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.

CASL, the University Sector, and the Private Right of ActionCASL, the University Sector, and the Private Right of Action



I had the pleasure of speaking to the Council of Ontario Universities last week on the topic of Canada’s anti-spam law (CASL). July 1, 2017 is a milestone date with the private right of action (PRA) slated to come into force and the transitional period for the existing and non-existing business relationship implied consent provision coming to an end. Both these events are causing significant anxiety across the country and in countries with organizations doing business with Canadians, in all sectors.

Misguided Policy: CASL’s Private Right of Action for Competition Act Reviewable ConductMisguided Policy: CASL’s Private Right of Action for Competition Act Reviewable Conduct



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. ‎

The new CASL private right of action for reviewable conduct under section 74.011 of the Competition Act is an aberration, which will be inconsistent with and offensive to the current regime by which the Competition Act addresses deceptive marketing practices.  

CASL’s private right of actionCASL’s private right of action



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.