snIP/ITs Insights on Canadian Technology and Intellectual Property Law

Tag Archives: CASL

CASL Private Right of Action delayed and Government to review CASL

Posted in Anti-Spam

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 … Continue Reading

Misguided Policy: CASL’s Private Right of Action for Competition Act Reviewable Conduct

Posted in Anti-Spam

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.  It will make misrepresentations in electronic messages the only such reviewable conduct which will be subject to private damage claims, and … Continue Reading

7 Practical Lessons from CRTC’s First CASL Enforcement Decision

Posted in Anti-Spam

Although CASL has been in force since July 1, 2014, the Canadian Radio-Television and Telecommunications Commission (“CRTC”) has conducted its investigations and levied its penalties in a generally non-public manner. Until now, the CRTC’s Compliance and Enforcement branch had publicly commented on only one Notice of Violation (“NoV”) under CASL. We understand that an undisclosed number of other NoVs have been issued without public comment.

All other public CASL enforcement actions have taken the form of negotiated “undertakings” which are forms of settlements reached in confidential, closed door negotiations with the enforcement branch. This atmosphere of secrecy has made … Continue Reading

CASL’s private right of action

Posted in Anti-Spam

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.

Organizations throughout the country … Continue Reading

“Do Not Call” means Do Not Call: CRTC Enters into MOU with FTC on Spam and Unsolicited Telecommunications

Posted in Anti-Spam, Regulatory Compliance, Telecommunications

On March 24, 2016, the Canadian Radio-television and Telecommunications Commission (“CRTC”) signed a memorandum of understanding (“MOU”) with the United States Federal Trade Commission.[1]  This MOU is an effort by Canada and the United States to work together on anti-spam enforcement measures, and expressly refers to unsolicited telecommunications, unsolicited commercial electronic messages (spam), and other unlawful electronic threats (e.g., malware and botnets).… Continue Reading

CRTC CASL Compliance and Enforcement Update

Posted in Anti-Spam, Regulatory Compliance

On February 10, 2016, Lynne Perrault and Dana-Lynn Wood of the CRTC provided the latest in what is becoming a series of CASL briefings, which the presenters described as part of an “on-going dialogue” with industry. The CRTC now has a year and a half of enforcement experience under its belt for the Commercial Electronic Messages (CEMs) provisions of CASL, so this presentation focused on patterns and issues that have emerged in that period, and some guidance in response to those issues.  However, the presenters took some pains to note that the guidance offered was not intended to be prescriptive … Continue Reading

CRTC Executes CASL Warrant as Part of Botnet Take-down

Posted in Anti-Spam

On December 3, 2015, the CRTC issued a release announcing its first-ever execution of a warrant under the Canadian anti-spam law (commonly known as “CASL”), as part of a coordinated international effort to disrupt a major botnet family.

The effort also involved law enforcement and cybersecurity authorities in the U.S., Europe, and Asia, as well as Microsoft and other private sector actors including ESET.

The target botnet family, known as “Dorkbot”, can be exploited to capture personal information (particularly passwords) from users of compromised PCs, to send out spam, or to participate in distributed denial of service … Continue Reading

CASL Reduced Legitimate Email as Much as “Spam”: Cloudmark Study

Posted in Anti-Spam

As part of its 2015 Q1 Security Threat Report, the network security firm Cloudmark has released an empirical analysis of email traffic in Canada, following the coming-into-force of Canada’s anti-spam law (informally known as “CASL”). The results show that CASL has had a measurable effect on email in Canada, but the effect may not be what the government intended.

Average monthly email volumes received by Cloudmark customers in Canada declined by 29%, but the percentage of received email that Cloudmark assessed as “spam” actually increased, albeit by an insignificant amount (from 16.5% to 16.6%). In other words, the … Continue Reading

PlentyOfFish Hooked by Anti-Spam Legislation

Posted in Anti-Spam

Canada’s Anti-Spam Legislation (“CASL”) came into force on July 1, 2014, creating new requirements for sending commercial electronic messages (“CEM”).[1] A non-compliant business risks having “administrative monetary penalties” (or “AMPs,”, which are essentially fines) levied against it by the CRTC.   However, until recently, there has been no guidance on how aggressively CASL would be enforced, the scope of Notices of Violations, or how AMPs would be determined, and the scope of such. Businesses were stuck in a murky regulatory regime.

With the recent $48,000 AMP imposed on PlentyOfFish, as part of an undertaking entered into … Continue Reading

CASL Enforcement: Much Ado About Nothing?

Posted in Anti-Spam

Was it all for nothing? CASL, I mean.

The mad rush towards the July 1, 2014 deadline, the thousands (in many cases, hundreds of thousands) of dollars spent on compliance, the escalating salvo of shrill e-entreaties to please, please, please provide consent.

All the hype, all the fuss and….nothing. Was it Y2K all over again?

Complaints

From the perspective of organizations, the eerie calm may indeed be reminiscent of those first few seconds past midnight on January 1, 2000. For the CRTC, however, the regulatory wheels have been furiously churning for months. Unlike Y2K, the first few hours after July … Continue Reading

CASL’s inscrutable computer program provisions to be tackled by CRTC

Posted in Anti-Spam

With the computer program sections of Canada’s anti-spam/anti-malware law (CASL) coming into force in January 2015, the CRTC has now started reaching out to the public for questions they want guidance on in FAQs or bulletins. I attended such a session last week (on September 9, 2014) at an IT.CAN Public Affairs Forum Roundtable. The attendees were Dana-Lynn Wood (Senior Enforcement Officer, Electronic Commerce Enforcement, CRTC) Kelly-Anne Smith (Legal Counsel, Legal Sector CRTC), and Andre Leduc (Manager of the National Anti-spam Coordinating Body, Industry Canada).… Continue Reading

The Enforcement Begins: Highlights of the CRTC FAQ Updates on CASL

Posted in Anti-Spam

CASL came into effect on July 1, 2014, including the provisions for sending commercial electronic messages (“CEM”) (section 6) and installing computer programs (section 8).   Since July 1, 2014, it is reported that the CRTC has received more than 1,000 complaints.  Hence, awareness of this new law is spreading quickly, and as such so should attempts by organizations to become compliant.

The CRTC FAQs on Canada’s new Anti-Spam Legislation (“CASL”) were updated on July 4, 2014.  We covered the revisions made to the FAQs in May 2014 in a previous blog post.  The updated FAQs … Continue Reading

CASL Guidance for Registered Charities

Posted in Anti-Spam

Canada’s Anti-Spam Legislation (“CASL”), which came into force on July 1, 2014, is considered to be the toughest commercial electronic messaging (“CEM”) legislation in the world, with substantial fines for violations (including fines up to $10 million for organizations).

While CASL’s prohibition on sending CEMs (without adhering to prescribed consent, form and unsubscribe requirements) applies to all organizations, the regulations exempt CEMs sent by a registered charity (as defined under Canada’s federal Income Tax Act) where the primary purpose of the CEM is to raise funds for the charity.

Registered charities making efforts to comply … Continue Reading

Le CRTC Publie des FAQs sur la Loi Canadienne Anti-Pourriel

Posted in E-Commerce

The English version of this article is available here.

Le 18 décembre 2013, le CRTC a publié une série de FAQs pour aider les organisations et les individus concernés dans leurs efforts pour se conformer à Loi canadienne anti-pourriel (la « Loi anti-pourriel »), qui entrera en vigueur en juillet 2014. Bien que les FAQs ne fournissent que des orientations supplémentaires limitées, elles sont utiles comme source agrégée d’information, des bulletins, de lignes directrices et d’autres déclarations concernant la Loi anti-pourriel publiés par le CRTC.

La Loi anti-pourriel est largement considérée comme la législation de messagerie électronique commercial la … Continue Reading

Canada’s Anti-Spam Law FAQs Released by CRTC

Posted in E-Commerce

La version française de cet article est publiée ici.

On December 18, 2013, the CRTC released a series of FAQs to help affected organizations and individuals in their efforts to comply with Canada’s Anti-Spam Legislation (CASL), which will begin coming into force in July 2014.  Though the FAQs provide limited additional guidance, they are useful as an aggregated source of information, bulletins, guidelines and other statements about CASL released by the CRTC.

CASL is widely considered to be the toughest commercial electronic messaging legislation in the world, and its coming into force will have significant implications for … Continue Reading

La loi canadienne anti-pourriel entre en vigueur bientôt – Êtes-vous prêt?

Posted in E-Commerce

The English version of this article is available here.

Le ministre de l’Industrie, James Moore, a annoncé récemment que la majorité des dispositions législatives canadiennes attendues depuis longtemps contre les pourriels et les maliciels (la « Loi anti-pourriel ») entreront en vigueur le 1er juillet 2014. Dans le cadre de cette annonce, Industrie Canada a également publié une version définitive révisée en profondeur de son important règlement relatif à la Loi anti-pourriel.

La Loi anti-pourriel est largement reconnue comme la loi en matière de messages électroniques commerciaux la plus sévère dans le monde, et son entrée … Continue Reading

Canada’s Anti-Spam Law is Coming – Are you Ready?

Posted in E-Commerce

La version française de cet article est publiée ici.

Industry Minister James Moore announced today that most of Canada’s long-anticipated anti-spam/malware legislation (“CASL” for short) will be coming into force on July 1, 2014.  As part of today’s announcement, Industry Canada also released a significantly revised and final version of its important CASL regulations.

CASL is widely considered to be the toughest commercial electronic messaging legislation in the world, and its coming into force will have significant implications for Canadian businesses, not-for-profit organizations and individuals using electronic means to communicate.  Those who violate CASL could face fines … Continue Reading

Canadian Anti-Spam Regulations Published for a 30-Day Comment Period

Posted in E-Commerce

La version française de cet article est publiée ici.

The revised draft of the Industry Canada Regulations pertaining to Canada’s new anti-spam/malware law (CASL) was published in the Canada Gazette on January 5, 2013 for a 30-day comment period.

The highly anticipated draft regulations represent the final legislative aspect of one of the world’s most stringent anti-spam and anti-malware regimes and provide some clarity as to the use of some important terms in the CASL.

It also includes new exemptions in respect of subject matter not intended to fall within CASL’s reach. The goal of CASL according to Industry … Continue Reading

CRTC Issues Guidelines on Canada’s Anti-Spam Law

Posted in E-Commerce

The CRTC has issued two sets of interpretative guidelines addressing important parts of Canada’s new anti-spam law (CASL). While guidance on CASL is welcome, these guidelines reinforce the great lengths to which many businesses will need to go to in order to ensure compliance.

The guidelines focus on the CRTC’s interpretation of the regulations it released in March, 2012 and the related provisions of CASL, and provide examples of what the CRTC considers to be compliant behavior.

By way of background, CASL was designed to regulate commercial electronic messages (CEMs) and the installation of computer programs on other … Continue Reading