Canada: Government Tables Anti-Spam and Anti-Spyware Laws in Bill C-28

The Canadian government recently tabled legislation that would impose stiff penalties for sending unsolicited commercial electronic messages (spam) or surreptitiously installing malicious software programs on computers without the owner's consent (spyware). Bill C-28, Fighting Internet and Wireless Spam Act (FISA), also contemplates amendments to the Competition Act, the Personal Information Protection and Electronic Documents Act, and the Telecommunications Act.

The FISA represents the government's second attempt to introduce legislation to combat spam and spyware. As we previously reported, last year the government tabled the Electronic Commerce Protection Act (ECPA), which also sought to curb spam and spyware. That bill was extensively amended before it was passed by the House of Commons. When Parliament was prorogued later in the year, the ECPA died on the order paper. The FISA's anti-spam and anti-spyware provisions are largely unchanged from the amended version of the ECPA.


Like its predecessor, the FISA would prohibit organizations from sending commercial electronic messages to an electronic address unless the sender has the recipient's express or implied consent. "Electronic message" is defined broadly to include any "message sent by any means of telecommunication, including a text, sound, voice or image message." It would include e-mails, text messages, or instant messages, and so could encompass many forms of electronic communication including "tweets" or Facebook® postings.

The FISA retains certain exceptions to this rule, which appeared in the amended ECPA. Under the FISA, consent is not required to send a commercial electronic message, the purpose of which is to:

  • provide a quote or estimate;
  • facilitate, complete, or confirm an existing commercial transaction;
  • provide warranty information;
  • provide information related to an ongoing subscription, membership, account or loan;
  • provide information related to an employment relationship; or
  • deliver a product, goods or a service, including product updates and upgrades.

The list is not exhaustive, as other purposes may be specified by regulation.

The bill also provides for certain situations where consent can be implied, including where:

  • the sender has an existing business relationship with the recipient (provided the relationship is entered into within the specified timeframe);
  • the recipient has "conspicuously published" its electronic address and has not indicated a desire to not receive unsolicited commercial electronic messages, and the message is relevant to the recipient's business role; or
  • the recipient has provided its electronic address to the sender without indicating a wish not to receive unsolicited commercial electronic messages.

When requesting express consent to send unsolicited commercial messages, an organization would have to set out "clearly and simply" the purpose(s) for which the consent is being sought, information identifying the organization that is seeking the consent, and any other information that may be prescribed.

The FISA also stipulates that electronic messages must:

  • identify the sender;
  • provide contact information for the sender; and
  • include an "unsubscribe" mechanism (either a link or an e-mail address), so that recipients can opt out of receiving future communications. This mechanism must allow recipients to indicate that they no longer wish to receive the messages, and the e-mail address or link must be valid for at least 60 days after the message has been sent. If an organization receives an "unsubscribe" request, it must act on it within 10 business days.


To combat spyware, malware and botnets, the FISA would prohibit the installation of computer programs without the consent of the computer's user or owner. The bill would also require, before any software is installed on a computer, that the organization requesting consent, or the program itself, "describe clearly and simply the function and purpose of every computer program that is to be installed." However, if a program performs certain potentially undesirable functions, it must additionally bring its "foreseeable impacts" to the attention of the user, which could require significant disclosures from software manufacturers. The prescribed list of undesirable functions is similar to those found in international anti-spyware law precedents, and includes:

  • collecting personal information stored on the computer system;
  • interfering with the user's control of the computer system;
  • changing or interfering with settings or preferences on the computer system without the user's knowledge;
  • interfering with access to or use of that data on the computer system;
  • causing the computer system to communicate with another computer system without the authorization of the user; or
  • installing a computer program that may be activated by a third party without the knowledge of the user.

These requirements would apply not only to personal computers and computer servers, but also to any electronic device that allows for the installation of third-party programs — such as iPhones and BlackBerry® devices. Certain technologies are exempted from these requirements, provided it is reasonable to conclude from the recipient's conduct that the recipient consented to the program's installation. These include: HTML code, Web cookies, javascript code, operating systems, patches and add-ons, and other programs the government may include through regulation. Program upgrades and updates are also exempt, if the recipient consented to the initial installation and is entitled to receive upgrades or updates.


The FISA also prohibits altering transmission data in a message, or causing it to be altered to route the message to an unintended destination without the sender's express consent or a court order. This provision is aimed at activities such as "man-in-the-middle" attacks (intercepting and redirecting messages without the parties' knowledge) and "phishing" (impersonating a legitimate organization to steal valuable personal data).


At this time, the FISA does not address two-way voice communication between individuals, notably telemarketing. Telemarketing is regulated under the Telecommunications Act, in particular the Do Not Call List (DNCL). The FISA does, however, contain a provision permitting the government to revoke the DNCL-enabling provisions in the Telecommunications Act and to include telemarketing under the FISA. Should the government do so, telemarketing would then be covered by the more stringent opt-in model for unsolicited commercial messages under the FISA (versus the current opt-out model under the DNCL).

Amendments to Other Acts

In addition, the FISA would introduce amendments to the Competition Act to prohibit false or misleading commercial representations made electronically. It would also amend the PIPEDA to prohibit the collection of personal information by means of unauthorized access to computer systems, and the unauthorized compiling of lists of electronic addresses.

Penalties and Private Right of Action

If the FISA is passed, violators could face fines of up to $1 million for individuals and $10 million for organizations per violation of certain provisions. The FISA would also create a private right of action that would allow businesses and consumers to take civil action against anyone who violates the FISA on a lower "balance-of-probabilities" standard. The court will be able to order compensation in an amount equal to the actual loss or damage suffered or expenses incurred by the applicant. It can also award damages of $200 per contravention to a maximum of $1 million per day, for most contraventions.

McCarthy Tétrault Notes

In our previous TLQ article, we reported that the Canadian Chamber of Commerce had expressed concern about certain amendments to the PIPEDA in the ECPA. The Chamber was worried that these amendments, which were intended to prevent malicious acts such as e-mail harvesting and computer hacking to access personal information, would render ineffective certain key exceptions in the PIPEDA, including the exception that permits the collection of personal information for the purposes of investigating breaches of an agreement or the contravention of federal or provincial law.

The FISA addressed these concerns by specifically noting that collections of personal information currently excepted in the PIPEDA would only violate the FISA if the information were to be collected in violation of federal law (including the FISA itself). This key change to the FISA over the ECPA has the effect of focusing this provision specifically on the acts it intends to prohibit (e-mail harvesting and computer hacking), while still permitting business and individuals to collect personal information electronically for certain beneficial purposes such as fraud detection and prevention.

Since the FISA is largely a derivative of the ECPA that the House of Commons has already passed, it is expected to be fast-tracked through Parliament. Should the FISA come into effect, organizations will need to:

  • review and update their forms for obtaining express consent to send commercial electronic messages, or install software programs to ensure that the forms satisfy the prescribed requirements;
  • re-examine their procedures for documenting that consent, as the onus will rest on senders and software developers to prove they obtained consent;
  • ensure that any commercial electronic message includes the prescribed information and an unsubscribe mechanism that is operational for the specified period;
  • deal with unsubscribe requests within the requisite time frame;
  • ensure that any process that involves online collection of e-mail addresses or other personal information complies with the amendments to the PIPEDA; and
  • in the case of software developers, examine their program-installation procedures to ensure that information about the function and purpose of the program is provided prior to installation. In addition, if the program performs one of the prescribed undesirable functions, the mechanism will also need to include further information about the foreseeable impacts of these functions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions