The provisions of Canada’s Anti-Spam Law (known as “CASL”) dealing with commercial electronic messages will come into force on July 1, 2014. Organizations doing business in Canada need to take notice of the requirements of this legislation and to prepare for and implement its requirements into their day to day practices and procedures. Businesses must ensure that they have the appropriate legal and business policies, procedures and technical infrastructure in place, and perform ongoing monitoring to ensure compliance and avoid the significant penalties that can arise from failing to observe the law.
Key Provisions
In brief, CASL provides that:
1. It is illegal to transmit any commercial electronic message unless there is express or implied consent to do so, or the message benefits from a permitted exemption. The definition of "commercial electronic message" is very broad and includes any message sent by telecommunications (including e-mail, text messages etc.) if the purpose of that message is to encourage participation in a commercial activity. There are specific rules on how to obtain consent. There are some limited exceptions to the consent requirement.
2. All commercial electronic messages must, from July 1, 2014:
a. identify the person who sent the message (and if different, the person on whose behalf it was sent);
b. provide accurate contact information for these parties; and
c. set out a mechanism through which the recipient may unsubscribe. The recipient must be able to unsubscribe using the same means by which the message was sent. There are specific rules and time limits for complying with unsubscribe requests.
3. It is illegal as part of a commercial activity to install any computer program – good or bad- onto someone’s computer unless there is express consent. It is also illegal as part of a commercial activity to install any computer program onto someone’s computer that transmits data of any kind from that computer unless there is express consent.
Penalties for violation of the provisions of CASL are hefty. Violations of CASL may be punished by administrative monetary penalties of up to $1,000,000 for an individual and $10,000,000 for a corporation or other business entity. These fines are imposed per violation, and a violation is defined as being separate for each day that it continues. In addition, CASL provides private rights of action for breaches of its core provisions, although this right of action will not come into force until July, 2017. As well, the provisions respecting the installation of computer programs do not come into force until January 15, 2015.