Written by Joanne McPhail, Partner, Certified Specialist in Corporate and Commercial Law at Barriston LLP, and
Reginald Brown, Articling Student at Barriston LLP.
The new Canadian anti-spam legislation (CASL) is expected to
come into force on July 1, 2014, and it will prohibit the sending of
unsolicited commercial electronic messages (CEMs), which are messages that
encourage participation in a commercial activity. CEMs will be prohibited
whether they be in the form of emails, texts, social media, or any other form
of telecommunication.
However, a person will be able to send CEMs without
violating CASL if the recipient has consented to receiving them. To get consent,
the sender must deliver a preliminary message that identifies the sender by
name, provides their business contact information, and directs the recipient to
an unsubscribe mechanism or opt-out option enabling them to decline receiving messages
in future.
In certain instances, the recipient’s consent will be deemed
to be implied, for instance, if the sender and the recipient have either an
existing business relationship, such as a relationship formed by contract or a
business investment, or an existing non-business relationship, such as a
relationship formed by membership in a club.
Next, CASL also prohibits a person from altering the transmission data in a CEM and causing it to be delivered to a destination other than that specified by the original sender unless the original sender or the recipient of the message consents to the alteration. As an example, it may be appropriate to give consent when an employee consults a company mailing list and sends the CEM to more clients or customers than their employer initially intended, especially if the CEM may be of interest to the added recipients.
Lastly, CASL bars a person from installing a program on any other person’s computer system if the program interferes with the user’s controls or settings (i.e. spyware), that is unless the user expressly consents to the installation. Before consent can be given, however, the installer must explain to the user the function and purpose of the program as well as the effects of installation.
Every person found to have violated CASL is liable to a maximum penalty of $1,000,000 for individuals and $10,000,000 for any other person (i.e. a corporation). Furthermore, an employer may be liable for a violation of CASL by an employee acting within the scope of their employment unless the employer can establish that they exercised due diligence to prevent the misconduct.
For more information, please visit www.fightspam.gc.ca.