snIP/ITs

Insights on Canadian Technology and Intellectual Property Law

OIPC Cloud Computing Guidelines for BC Public Bodies

By David Crane on Posted in Contracting/Outsourcing, Privacy, Regulatory Compliance

Recently, the Office of the Information and Privacy Commissioner for British Columbia published cloud computing guidelines for public bodies in British Columbia. The purpose of the guidelines is to provide information to public bodies about how BC’s Freedom of Information and Protection of Privacy Act (BC FIPPA) applies to cloud computing.

What is Cloud Computing?

Cloud computing is an increasingly popular on-demand service model for IT provision, often based on virtualization and distributed computing technologies. It typically involves the provision of web-based services, such as online file storage and applications, using hardware and software managed by the service provider. For many customers, cloud computing offers an attractive, cost effective, scalable and readily-accessible IT solution.

When Do the Privacy-related Requirements of BC FIPPA Generally Apply?

BC FIPPA applies to personal information that is in the custody or under the control of a public body, including its employees and service providers. The term “personal information” is defined in BC FIPPA and means any recorded information about an identifiable individual. The words “custody” and “control” are not defined. Determining who has custody and control of personal information can be difficult and depends on a variety of circumstances. A public body that has personal information in its custody or control must comply with BC FIPPA. There are currently more than 2,900 public bodies in BC, including schools, hospitals and municipalities.

What Do the Guidelines Cover?

The guidelines review certain requirements of FIPPA that are particularly pertinent to cloud computing. BC public bodies are reminded that they must protect personal information no matter where it is located. Subject to certain limited and narrow exceptions, public bodies must ensure personal information, including information in computer logs and on backup drives, is only stored in and accessed from inside Canada. These requirements often prevent a public body from being able to engage a cloud service provider because many cloud service providers store information outside of Canada.

The guidelines also discuss the limited circumstances in which a public body can store or access personal information outside of Canada, including the difficult-to-apply consent exception. Public bodies can store or access personal information outside of Canada if the individual, for whom the personal information is about, has given consent to the public body to do so in the prescribed manner. However, it is often challenging or impractical to obtain the multiple consents required when recorded information contains the personal information of multiple individuals, as is often the case (e.g. e-mails).

BC FIPPA requires public bodies to protect personal information by making reasonable security arrangements against such risks as unauthorized access, collection, use, disclosure or disposal. The guidelines state that the determination of reasonable security arrangements in the context of cloud computing will usually require a review of the security the cloud service provider has in place, taking into account the sensitivity of the personal information involved. The guidelines call out in particular the following key areas a security review should cover:

  • Governance – corporate policies, procedures and standards for security and privacy
  • Identity and Access Management – controls surrounding access by cloud service provider employees, as well as employees and users of the public body’s systems
  • Infrastructure Security – the management and ongoing maintenance of network, system and application security including layered security controls and patch management
  • Encryption – encryption of personal information during transmission and storage

Key Takeaways

A BC public body considering contracting with a cloud service provider must:

  • conduct appropriate advance due diligence on the provider to ensure the provider can deliver its cloud services in compliance with BC FIPPA
  • ensure that any service contract entered into with the provider includes robust confidentiality, privacy and security provisions (which may require variation of the provider’s standard service contract to ensure compliance with BC FIPPA)

Cloud service providers that want to do business with public bodies in BC should ensure that they can satisfy the applicable requirements of BC FIPPA, including having sufficient security measures in place to protect any personal information obtained from BC public bodies.

Tips for Tech Companies Looking to Be Acquired

By Troy Lehman on Posted in M&A/Finance

In the organised chaos of running a business, many issues naturally get overlooked until an acquisition is on the table. Stopping for a moment in the early stages to think through deal strategy, due diligence and the acquirer’s needs, saves costs and gets the deal closed. At a recent McCarthy Tétrault seminar, “Are You Ready to be Acquired“, the speakers offered the following tips to tech companies contemplating a sale - to better ensure that the acquisition process runs smoothly:

  1. Obtain current market information so you can gauge financial buyer and/or strategic buyer interest in your market, sector or industry and offer an attractive opportunity.
  2. Choose advisors that match your transaction. Find advisors with the right style, creativity, experience and ability to navigate your transaction (all the way through to close).
  3. Build a Team. Selling a business is not a one person job.
  4. Understand your cap table for alignment of shareholder interests and make sure that there are appropriate exit mechanisms in place with shareholders (e.g. drag rights that work as advertised).
  5. Parse the buyer’s Letter of Intent (LOI) for the buyer’s hot buttons and must haves.
  6. Be able to demonstrate protection of trade secrets, including having a record of NDAs to evidence that no core technology has been improperly disclosed.
  7. Listen to the buyer, be responsive and align with the buyer’s process. If you can’t solve the buyer’s problem, it will get solved for you by the buyer reducing the purchase price or walking away.
  8. Identify and develop a strategy to deal with customer contracts with onerous post-close obligations or that involve the customer in the deal process (e.g. release of source code on change of control unless customer provides prior consent).
  9. Assemble documents for the data site early. Be ready for the inevitable requests and beware of unintended disclosures on follow-up requests.
  10. Start disclosure schedules early, after the first draft of the purchase agreement, and follow the buyer’s guidance.
  11. Pay attention to the escrow. Focus on amount, length of time, claim mechanism and location.
  12. Find an internal champion in the buyer organization, someone who is invested and tied to your success. Align yourself with him or her throughout and following the transaction.

Responding to Canadian Patent Office Objections: Breadth of Claims

By Lisa Melanson on Posted in Intellectual Property, Patents

This is part of a series of posts reviewing common Canadian Patent Office objections to patent applications and claimed inventions and providing some insight into how these objections may be addressed.

The Objection

In a standard objection, the patent examiner asserts that the claims do not comply with section 84 of the Patent Rules because they are broader in scope than the teachings of the description. Frequently, the examiner will request that the claims be amended to incorporate an “essential element” identified from the disclosure.

The Regulatory Provision

The Patent Rules are subordinate legislation enacted pursuant to section 12 of the Patent Act, which authorizes the Governor in Council to make regulations under the statute. Section 84 of the Patent Rules states:

84. The claims shall be clear and concise and shall be fully supported by the description independently of any document referred to in the description.

It is important to recognize that this provision is an administrative drafting rule, not a rule of substantive law. The statutory requirement relating to the content of claims is actually established in subs. 27(4) of the Patent Act:

27 (4) The specification must end with a claim or claims defining distinctly and in explicit terms the subject-matter of the invention for which an exclusive privilege or property is claimed.

The claims requirement in subs. 27(4) closely resembles the claims requirement for US applications in 35 U.S.C. §112, 2nd para.

Section 84 cannot overrule the provisions of the Patent Act; otherwise, it is ultra vires the statute.

Addressing the Objection

Here are some reasons why you should consider arguing in traverse of a Rule 84 objection to the claims on the basis that they fail to include an “essential element” found in the disclosure:

  • It is basic Canadian patent law that the claims and the disclosure perform two separate and distinct functions.
    • As noted above, the requirement for the content of claims is found in sub. 27(4) of the Patent Act.
    • In contrast, the requirement for a description of the claimed invention is found in subs. 27(3) of the Patent Act.
  • The Rule 84 objection is backwards: it suggests that the disclosure must be reviewed to determine if the claims have properly identified the claimed invention.
    • As provided in subs. 27(4) of the Patent Act, patent claims are the vehicle by which the patent applicant provides notice to the public of the subject matter of the invention for which protection is sought.
    • The subject matter of the claims must be supported by the description, so that the public is not deceived in its bargain. However, the exclusive right sought by the applicant is never defined by this disclosure. The exclusive right is defined by the claims alone.
  • Rule 84 does not provide the examiner with authority to require the inclusion of additional substantive elements in a claim. 
    • Rule 84 requires that claims be clear, concise, and fully supported by the description.
    • Neither clarity nor concision provides an appropriate basis for insisting on the inclusion of further elements.
    • At most, Rule 84 permits the examiner to identify a claim element not fully supported by the description, not vice versa.
    • Claims are not drafted by the examiner; they are drafted by the patent applicant, in his or her own words.
  • The “essential element” language used in the objection appears to be borrowed from the Canadian law of infringement.
    • Although there is no doctrine of equivalents in Canada, an infringement analysis under Canadian law permits a determination of the elements of a claimed invention that are essential or not essential.
    • The Rule 84 objection confusingly imports this “essential element” notion into the context of assessing descriptive support for a claimed invention.
    • According to the Supreme Court of Canada, an essential element may be identified in a patent claim once drafted. However, it is incorrect to suggest that an element not already in a patent claim is essential and must be recited.
  • Responding to the objection by amendment rather than argument results in narrower claims and a loss of patent scope.
    • Given the lack of continuation, continued-examination, or terminal-disclaimer practice in Canada, there is little opportunity to reclaim this claim scope in a subsequent application.

Next up: Responding to an objection to the claimed invention under s. 2 of the Patent Act on the basis that it includes dosing elements.

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Hot Off the Press – Doing Business in Canada 2012

By McCarthy Tétrault LLP on Posted in Copyright, Intellectual Property, M&A/Finance, Patents, Privacy, Trade-marks

If your organization is currently thinking about establishing or acquiring a technology business in Canada, the 2012 edition of Doing Business in Canada, written by McCarthy Tétrault, will prove to be a valuable resource. The guide provides a broad overview of the legal considerations that non-residents should take into account to help ensure their success as they enter into a business venture in Canada. Each section offers timely information, up-to-date legislative provisions and insightful commentary on different areas of law. After downloading the guide, we encourage you to consult one of our lawyers for a more comprehensive analysis of the legal implications of your proposed venture.

The guide includes chapters on:

  • information technology, discussing applicable export controls, consumer protection legislation, evidence laws, e-commerce statutes and anti-spam and anti-spyware regulation.
  • intellectual property, providing a snapshot of Canada’s patent, copyright and trade-mark laws as well as Canada’s position on major treaties and protocols.
  • privacy laws, reviewing the privacy regimes for private sector organizations and providing a compliance checklist for organizations establishing businesses in Canada.

Cloud Computing, the B-10 Outsourcing Guideline and OSFI

By Barry Sookman on Posted in Contracting/Outsourcing

Recently, the Office of the Superintendent of Financial Institutions (OSFI) released a memorandum reminding federally-regulated financial institutions (FRFIs) that OSFI’s revised Guideline B-10 “Outsourcing of Business Activities, Functions and Processes” applies to new technology-based outsourcing arrangements, including cloud computing.

In the short memorandum, OSFI:

  • acknowledged that these new technology-based services may offer opportunities and benefits for FRFIs but cautioned FRFIs that they need to consider and manage the risks associated with the unique features of these services (including issues surrounding location of records.)
  • reminded FRFIs that the expectations in the Guideline apply to these services.

The Guideline sets out OSFI’s expectations for FRFIs that outsource any of their business activities to a service provider. Although OSFI takes the view that FRFIs should have the flexibility to configure their operations in the way most suited to achieving their corporate objectives, the Guideline operates on the premise that FRFIs retain ultimate accountability for all outsourced activities.

Under the Guideline, material outsourcing arrangements are expected to comply with specified requirements around (among other things):

  • confidentiality, security and separation of property
  • contingency planning
  • location of records
  • access and audit rights
  • subcontracting by the service provider
  • monitoring the arrangement and the service provider

The Lion Roars – But Can It Be Trade-marked?

By Daniel G.C. Glover on Posted in Intellectual Property, Trade-marks

As followers of the Canadian trade-marks scene will almost certainly have learned, last week Metro-Goldwyn-Mayer succeeded in a long-running battle with the Canadian Intellectual Property Office in getting a trade-mark registration for its longstanding “roaring lion” sound mark. As was widely reported, the Federal Court issued an order setting aside the decision of the Trade-marks Office refusing MGM’s application. The Office then quickly issued a new sound mark practice notice indicating that it would accept other sound mark applications.

The practice notice cautions that “where a sound mark is considered to be functional and/or clearly descriptive or deceptively misdescriptive, an objection will be raised pursuant to the provisions of paragraph 12(1)(b) of the Trade-marks Act. In such cases, the mark may be registered pursuant to the provisions of subsection 12(2) or section 14 of the Act.” Further, new applications for sound marks may only be submitted by way of a physical application, and not through CIPO’s online filing system. The sound mark is to be embedded in MP3 or WAVE format on a CD or DVD.

There are two points that are particularly worthy of discussion.

1. Legal Basis for Allowance Remains Unstated

The first is to note that the Federal Court matter never went to adjudication. Rather, the docket summary indicates that the matter was settled by an order of Prothonotary Aronovitch. This means that the legal basis for granting such an application remains unsettled. While the practice notice provides some guidance for how such marks will be prosecuted, all trade-marks practice notices are conditioned on a disclaimer that, in the event of any inconsistency between these notices and the applicable legislation, the legislation must be followed. Certain practice notices (such as the notice pertaining to the name or surname prohibition) are no longer an accurate presentation of the law (see this Federal Court decision for why the name or surname notice is out of date).

2. Conflict with Legal Precedent?

The second point is that the approval of the application may conflict with a longstanding precedent of the Federal Court of Appeal, Playboy Enterprises Inc. v. Germain (No.1) (1987), 16 C.P.R. (3d) 517 at 522 (F.C.T.D.), which considered the definition of a trade-mark under s. 2 of the Act. The critical part of that definition reads as follows:

“trade-mark” means

(a) a mark that is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others,

The Playboy decision involved a claim that the applicant had trade-mark rights in a word that was not “marked” on visual materials, but was used regularly as a verbal description to distinguish the applicant’s hairpieces. The applicant’s argument failed, with Justice Pinard holding that “I am of the opinion that use of a verbal description is not use of a trade mark within the meaning of the Trade-marks Act. A ‘mark’ must be something that can be represented visually.”

While this decision has been criticized as “shallow”, it will nonetheless be raised in future by opponents to sound marks. Absent a court decision setting out the registrability of a sound mark, the first cases will inevitably lead to creative arguments on how a law originally focused on marks, emblems and stamps will evolve (or not evolve) to accept non-traditional marks such as sound or smell marks.

A Middle Ground?

It may be that there is a middle ground between the Playboy decision and the MGM scenario: while the former sound was non-material because it was spoken and not recorded, the latter has been fixed in a vast number of films, trailers and commercials. Such a distinction makes a difference in copyright; perhaps it will for trade-marks law, too.

Hot Off the Press – Canadian Telecommunications Regulatory Handbook

By McCarthy Tétrault LLP on Posted in E-Commerce, Privacy, Regulatory Compliance

McCarthy Tétrault has just published Canadian Telecommunications Regulatory Handbook by partner Hank Intven.

The Handbook provides a detailed summary of Canadian telecommunications law and regulation and is a convenient single reference source for the text of the laws, treaties, regulations, directions, orders, rules and other key documents that govern Canadian telecommunications regulation.

This Handbook includes a chapter discussing the Do Not Call regime, Canadian anti-spam legislation and lawful access proposals, which may be of interest to in-house counsel in the tech and marketing space.

You can read more about the Handbook on McCarthy Tétrault’s website, where the book is also available for purchase.

Preserve Documents in the Face of Litigation

By David Tait on Posted in E-Discovery

With the massive number of emails and other electronic documents generated today on a daily basis, organizations face tough challenges in preserving documents in the face of litigation. In Voom HD Holdings LLC v. EchoStar Satellite LLC, Index No. 600292/08, 2012 NY Slip Op 00658 (January 31, 2012), the New York Appellate Division provides some timely guidance on what steps parties should take to preserve documents when faced with the prospect of litigation.

The case involved a contractual dispute where the parties had been engaged in contentious discussions for six months prior to the filing of the lawsuit. The defendant did not implement a litigation hold until four days after the filing.

In the decision, the court discussed two important points.

  1. The duty to preserve documents pre-dates the actual filing of the lawsuit. A hold should be placed as soon as litigation is reasonably anticipated.
  2. A litigation hold that relies upon employee discretion to preserve emails is not acceptable. Discretionary deletion may lead to an adverse inference notwithstanding the litigation hold.

Key Takeaway

While Voom HD Holdings is not a binding precedent in Canada, its teachings regarding preservation of electronic documents should be reviewed by organisations faced with looming litigation in Canada or abroad.

 

* with the assistance of Mike Yuzdepski

Responding to Canadian Patent Office Objections: The Equivalents Clause

By Lisa Melanson on Posted in Patents

This is part of a series of posts reviewing common Canadian Patent Office objections to patent applications and claimed inventions and providing some insight into how these objections may be addressed.

The Clause

Equivalents clauses are common in patent specifications, particularly those originally prepared and filed in the United States. A classic equivalents clause provides that the invention is not limited to specific embodiments disclosed in the description, and encompasses modifications falling within the scope of the claims. In the US, the clause reinforces application of the doctrine of equivalents. In Canada, the clause has a similar function, reinforcing a purposive construction of the claims.

The Objection

In a standard objection, the patent examiner asserts that the description does not comply with subs. 27(3) of the Patent Act because the equivalents clause: (a) does not correctly describe the invention, and (b) attempts to broaden the scope of the claims. Typically, the examiner requests deletion of the clause from the application. The Canadian Manual of Patent Office Practice has apparently included an objection to the equivalents clause for some time; however, patent examiners have only recently started to raise this objection with any frequency.

The Statutory Provision

The Patent Act provides a statutory framework for balancing the rights of the public and patent applicants. An applicant is granted patent claims under subs. 27(4) of the Act in return for an enabling description of the claimed invention under subs. 27(3). A bargain is struck between the patentee’s right to exclude others from practising the claimed invention and the public’s right to a proper disclosure that explains how to practice the invention and shows that the inventor was in possession of the invention at the time of filing.

Objections to equivalents clauses often purport to be grounded in para. 27(3)(a) of the Act, which states:

27 (3) The specification of an invention must:

(a) correctly and fully describe the invention and its operation or use as contemplated by the inventor….

The disclosure requirement in para. 27(3)(a) is similar to the written description requirement for US applications in 35 U.S.C. §112, 1st para.

Addressing the Objection

Here are some reasons why you should consider arguing in traverse of a subs. 27(3) objection to an equivalents clause:

  • Subs. 27(3) of the Patent Act is a provision of inclusion, not exclusion: it sets out the information that must be included in the application, but does not mention any information that must be excluded. This provision does not provide a basis in law for requiring deletion of material included in the application as filed.
    • Any attempt to amend or delete content of the description inherently exposes the application to a new-matter objection.
    • Unlike Europe, Canada does not require that the description be amended to conform to the claims ultimately allowed. Such an amendment should never be necessary in Canada if the claims are properly supported by the disclosure as filed.
    • Since a court purposively construing the claims may look to the disclosure to assess the meaning of claim language, a patent applicant should be loath to delete any content from the specification as filed.
  • The invention for which patent protection is sought is defined by the claims, not the disclosure. For each invention defined by a claim, subs. 27(3) requires that proper support be provided in the description. The objection to the equivalents clause is backwards. It suggests that the description (content fixed as of the filing date) is being used to broaden the invention defined by the claims (which can be amended while the application is pending.)
  • If a claimed invention is described somewhere in the application as filed, the descriptive support requirement of subs. 27(3) has been satisfied. The presence of an equivalents clause does not impact this assessment unless the only basis for a claim resides in the clause itself.
    • In that case, the objection should be directed to the claimed invention, not the description, on the basis that it lacks descriptive support under subs. 27(3).

Next up:  Responding to an objection to the claims under s. 84 of the Patent Rules on the basis that they are broader in scope than the teachings of the description.

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Private Avenues and Contractual Mechanisms for Combating Spam

By Paul Armitage on Posted in Consumer Protection, E-Commerce

In addition to government regulation of spam through the Privacy Commissioners’ offices, Competition Bureau, CRTC, and police, there are private mechanisms and contractual mechanisms for combating spam (and some of the more nefarious practices associated with spam.) Internet service provider (ISP) terms of use, private lawsuits, and rules and guidelines of industry associations have been employed to curb the perceived negative aspects of spam. These approaches have grown-up in the absence of specific anti-spam Canadian legislation. (The federal government recently passed Bill C-28, also know as “CASL” for the “Canadian Anti-Spam Law”, but that legislation is not yet in force.)

In a previous post, “Spam and the Canadian Legal System,” I looked at existing government regulation of spam in Canada and noted that those bodies are not primarily designed, employed or equipped to tackle spam in a comprehensive manner. In this post, I look at private avenues and contractual mechanisms that currently exist and compare them with CASL.

Terms of Use

An organization wanting access to the Internet, such as to send e-mail, is probably going to need to contract with an ISP. The contract will typically include terms of use or an acceptable use policy prohibiting use of the service to send spam. A spammer who runs afoul of this prohibition could have its service suspended or terminated.

The following clause would be typical in a contract with an ISP: “Customer must not distribute or publish unsolicited promotions, advertising or solicitations for funds, goods or services, including junk mail and spam.” It’s worth noting that the words in the sample clause have pejorative connotations – the messages must be “unsolicited”, “junk mail” or even the undefined (yet instantly recognizable) “spam.”

How Does CASL Compare?

CASL takes the opposite approach – it applies to all commercial electronic messages, without any qualification or normative element (e.g., that the messages must be “unsolicited”, “bulk”, “unwanted”) or any of the other negative connotations that people commonly associate with spam.  Under CASL, transmitting any commercial electronic message is illegal unless there is express or implied consent or it is in an excluded category, and the message is in a prescribed form.

Lawsuits

Courts have also heard private lawsuits over spam.  In 1267623 Ontario Inc. v. Nexx Online Inc., a business applied to the court to get an ISP to reactivitate the business’s website. Using a third party service provider, the business had sent out unsolicited emails at the rate of 200,000 per day to promote its website. After receiving numerous complaints, the ISP disconnected the business’s website for violating the ISP’s terms and conditions. Those terms and conditions required its customers to follow the generally accepted terms of “netiquette” when sending e-mails. 

The court, based on a review of the literature surrounding netiquette, the attitudes of users receiving spam, and American case law, concluded that sending spam was a breach of netiquette, unless the contract with the ISP specifically permits the distribution of unsolicited e-mails.

One of the American decisions reviewed in Nexx Online was CompuServe Incorporated v. Cyber Promotions, Inc. In that case, the court granted CompuServe, an online computer service, an injunction against an advertising agency sending mass unsolicited advertising e-mails on behalf of itself and its clients to CompuServe’s subscribers. The basis for the injunction was trespass — the ad agency used CompuServe’s property (its computer system) to send electronic signals (e-mails). CompuServe successfully argued that the effort of processing the ad agency’s spam placed a tremendous burden on CompuServe’s equipment in terms of consuming processing power and storage space. CompuServe also proved that subscribers had terminated their accounts specifically because of spam. So, lawsuits over spam have occurred without government legislation on the subject.

How Does CASL Compare?

One would expect spam-related lawsuits to continue and, in all likelihood, increase under CASL, since CASL creates a private right of action by anyone affected by a prohibited act under CASL. Violators of CASL will be liable to pay:

  • compensation for loss, damages and expenses; and
  • extensive awards that are capped at $1 million per day for breach of the anti-spam provisions, as well as $1 million for each act of aiding, inducing, or procuring a breach of the spam provisions.

CASL’s private right of action would also be available for use in class action lawsuits against persons contravening CASL.

Associative Rules and Guidelines

Industry associations may also have forms of self-regulation concerning spam.  An example would be the Canadian Marketing Association, which is the largest marketing association in Canada with 800 corporate members. The CMA’s Code of Ethics and Standards of Practice contain a number of provisions applicable to email advertising or spam. These include article I1 dealing with the accuracy of representations, article I5 prohibiting the disguising of the intent of the communication, and article N5 outlining how marketers should operate on the Internet, including:

“N5.3 Email Consent: Marketers must not send email marketing communications without the consent of the recipient, except where there is an existing business relationship. In cases where a consumer has provided his or her email address to a marketer, the marketer has implied consent to email that consumer.

…

N5.5 Email Marketing Opt-Out: Every email message must clearly identify the marketer and source of the email and provide the recipient with a simple and easy-to-use click through means to opt-out from receiving further email marketing communications from the marketer.

N5.6 Email Disclosure: Marketers must not misrepresent the source of any message or use false or misleading “subject” lines in email marketing communications. The subject line and body text in email marketing communications must accurately reflect the content, origin and purpose of the communications.”

If the CMA receives a complaint regarding a violation of the Code of Ethics, it will contact that organization and attempt to resolve the issue, regardless of whether the organization is a member or not. If the CMA is not satisfied that a member has made best efforts to comply, the case can be referred to an independent party for mediation and a hearing. If a member continues to ignore the process, the CMA can expel the organization and make a public announcement about the incident. However, the CMA does not have the authority to impose fines or restrictions. 

How Does CASL Compare?

CASL contains similar, but greater and more prescriptive, prohibitions. But importantly, CASL also includes major sanctions for its breach. In addition to the private right of action mentioned above, administrative monetary penalties (fines) exist for contravening CASL – up to $1 million for an individual and $10 million for anyone else. In the case of contravening the Competition Act portions of CASL, fines can be up to $10 million for corporations for a first offence and up to $15 million for subsequent offences.

Changing Landscape

As is apparent, the prevalence and negative aspects of spam have led to private organizations to take steps to regulate or prohibit spam.  If CASL proceeds to come into force, the legal landscape in Canada concerning spam would be greatly altered by government regulation through the terms and enforcement (both government and private) of CASL.