CASL Archives - Barry Sookman

CRTC’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.…

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CASL 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.…

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Misguided 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. …

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CASL’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.…

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John Kasich Trumped by CASL, Canada’s anti-spam law?

Last week I received several unsolicited emails including the one shown below asking for a donation to support Republican party leader hopeful John Kasich. The e-mail was sent without the remotest chance of there being an express or implied consent and without compliance with the prescribed information requirements of Canada’s much vilified anti-spam law, CASL.

There is no doubt that Canadians have an important interest in who wins the US Presidential party nominations. Given the importance of the stakes, Canadian residents eligible to make a donation might have welcomed receiving the solicitation.…

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CASL gets Rogers Media

The CRTC announced yesterday that it bagged another CASL pelt – this time Rogers Media. The company agreed to an undertaking with the CRTC and to pay $200,000 to avoid expensive enforcement proceedings.

Rogers Media allegedly sent commercial emails (CEMs) containing an unsubscribe mechanism that did not function properly or which could not be readily performed by the recipient. In some instances, the electronic address used to unsubscribe was allegedly not valid for the required minimum of 60 days following the sent message.…

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CASL: the unofficial FAQ, regulatory impact statement, and compliance guideline

The “anti-spam” portion of Canada’s anti-spam/spyware law (CASL) came into on July 1, 2014. The “malware/spyware” computer program provisions come into force on January 15, 2015.

Most organizations are having very difficult times adapting to CASL’s confusing and prescriptive rules. According to a recent mini-survey conducted by the Canadian Chamber of Commerce of over 160 of its members, from responses to questions answered over 90% of Canadian organizations believe that CASL should be scrapped, amended, or at least be subject to a Parliamentary review before it becomes law.…

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CASL: getting consents for upgrades to computer programs on pre-installed and resold devices

Canada’s anti-spam law (CASL) requires a person installing updates or upgrades to computer programs on another person’s computer system to obtain an express consent. This can be a challenge. If a person is able to get a consent to the installation of the program before installing it, the person can get consent to the installation of the update or upgrade at that time. The person cannot get consent for updates or upgrades that require enhanced disclosure under s.10(5) of CASL at that time, unless, of course, the person knows about them and can get a consent for them in advance.…

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CASL: when is a computer program installed or caused to be installed according to the CRTC

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.…

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CASL Spamaflop not constitutional

I have argued many times on this blog that Canada’s anti-spam law (CASL) would not survive a Charter challenge. It’s “ban all” approach to regulating commercial speech, with limited exceptions, cannot be justified. Professor Emir Crowne, Associate Professor, University of Windsor, Faculty of Law, just published a paper together with Stephanie Provato agreeing with this opinion, Canada’s Anti-Spam Legislation: A Constitutional Analysis, 31 J. Marshall J. Info. Tech. & Privacy L. 1.

The abstract of the article says the following:

On December 15th, 2010, the Government of Canada agreed to BillC-28, the Fighting Internet and Wireless Spam Act, with the intent to “deter the most damaging and deceptive forms of spam… from occurring in Canada and to help to drive out spammers.”

…

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