BY DANIELLE T. GAUER – On July 1, 2014, Canada’s Anti-Spam Legislation (“CASL”) took effect four years after Bill C-28 received royal assent.[1] The purpose and intention of the law is to deter the sending of “spam” mail or unsolicited electronic messages that can harm individuals, businesses, and network providers.[2]
The dangers of spam mail are vast, often resulting in severe consequences for the receiver. This kind of “junk mail” can deliver online viruses including, spyware, malware, and phishing, which can infect computers.[3] For example, phishing involves “impersonating a trusted person or organization in order to steal someone’s personal information”, ultimately resulting in a form of identity theft.[4]
The Government of Canada noted that according to the Cisco Annual Security Report, Canada was fourth on the “Spam Originating Country list” for 2008.[5] The hope of the new law is to reduce the amount of spam received by businesses and consumers, and most importantly, to deter the senders of this kind of electronic mail.[6] In order to send a commercial electronic message, the sender is required to obtain the recipient’s consent to receive further messages.[7]
It is important that the sender be truthful by taking the following steps: not sending false or misleading information, expressly identifying themselves, and offering the recipient an unsubscribe option.[8] Individual violators can be sanctioned up to a maximum of $1 million while corporations can be sanctioned up to a maximum of $10 million.[9] The purpose of these fines is not to punish per se, but rather to promote and encourage compliance.[10]
In addition to the fines to be imposed on violators, as of July 1, 2017 individuals will be given a right to civil action by applying to a court of competent jurisdiction for an order against those who allegedly have violated the Act.[11] Section 51(1) of the Act lists the available remedies that the court may order in a civil action.[12]
It is important for U.S. businesses operating in Canada to understand that they are not immune from the legislation’s reach. In fact, the Act stipulates that that the provisions apply to computer systems in Canada that are used to send or access electronic messages.[13] One of the problems that the legislation does not address is how foreign companies that send unsolicited electronic messages to Canadian computers will be held accountable. The hope is that through international cooperation the sending of spam will be reduced, thereby resulting in safer online commerce.
[1] An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying out Commercial Activities, and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c.23, http://canlii.ca/t/529tv.
[2] Industry Canada, Government of Canada Introduces Anti-Spam Legislation (CASL) https://www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/gv00521.html#q2 (last modified Feb.15, 2013); An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying out Commercial Activities, and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c.23, s.3, http://canlii.ca/t/529tv.
[3] Industry Canada, Government of Canada Introduces Anti-Spam Legislation (CASL), https://www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/gv00521.html#q1 (last modified Feb.15, 2013).
[4] Industry Canada, Government of Canada Introduces Anti-Spam Legislation (CASL), https://www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/gv00521.html#3 (last modified Feb.15, 2013).
[5]Industry Canada, Government of Canada Introduces Anti-Spam Legislation (CASL), https://www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/gv00521.html#q4 (last modified Feb.15, 2013).
[6] Industry Canada, Government of Canada Introduces Anti-Spam Legislation (CASL), https://www.ic.gc.ca/eic/site/ecic-ceac.nsf/eng/gv00521.html#7 (last modified Feb.15, 2013).
[7] An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying out Commercial Activities, and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c.23, s.6(1), http://canlii.ca/t/529tv.
[8] Id. at s.6(2).
[9] Id. at s.20(4).
[10]Government of Canada, Regulatory Impact Analysis, http://fightspam.gc.ca/eic/site/030.nsf/eng/00271.html (last modified Apr.12, 2013).
[11] An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying out Commercial Activities, and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c.23, s.91, http://canlii.ca/t/529tv.
[12] Id. at s.51(1).
[13] Id. at s.8(2).
