Canada: Legislative Let-Down? CRTC Issues Proposed Anti-Spam Regulations

Much-anticipated new anti-spam regulations will provide some clarity for senders of text messages, but may disappoint others, as the regulations leave unanswered many other questions of interpretation and application of the new statute.

The proposed Electronic Commerce Protection Regulations, released for public comment by the CRTC, do provide some further detail to the basic requirements under Canada's ponderously named new anti-spam legislation, (which for convenience is coming to be known unofficially as Canada's Anti-Spam Law (CASL)); however, the details are largely what one could infer from the statute.

Information to be included in messages

As we have previously noted, the statute includes a requirement that commercial electronic messages be in a specified form, including the identity and contact information of the sender of a message and the person on whose behalf the message is sent and a clear unsubscribe mechanism. The Regulations amplify somewhat on these basic requirements, requiring that electronic messages set out the following "clearly and prominently":

  • the names of the sender and, if different, the person on whose behalf a message is sent
  • if the message is sent on someone's behalf, a statement indicating which person is sending the message and which person on whose behalf the message is sent
  • if these parties carry on business by different names, the name by which those persons carry on business
  • the physical and mailing address, a telephone number providing access to an agent or voice mail system, an eMail address and a web address of the person sending the message and, if different, the person on whose behalf the message is sent – and any other electronic address used by those persons

Tweet relief

Helpfully, for senders of commercial text messages, tweets and other character-limited communications, the Regulations provide that where it is not practicable to include the foregoing information in the text of the message itself, the message may include a link to a web page that, through a single click (or equivalent), will clearly and prominently set out the required information.

Three clicks and you're out

The Regulations further provide that the unsubscribe mechanism required by the Act, whereby message recipients may readily unsubscribe from future messages using the same electronic means by which the message was sent, must be able to be performed in no more than two clicks, or "another method of equivalent efficiency."

Information to be included in a request for consent

The Regulations clarify that consent must be sought separately for each of the sending of a commercial electronic message, the alteration in transit of transmission data in an electronic message and the installation of a computer program on a computer system.

When seeking the consent required to carry out these activities, the Regulations require that the request for consent must include much the same information as that required to be included in a commercial electronic message (set out above), as well as a statement indicating that consent may be withdrawn by contacting the person who sought consent, or the person on whose behalf consent was sought, using the contact details required to be set out in the original request for consent.

Disclosure and consent for spyware-like functions

CASL includes a general requirement for consent in order to install or cause to be installed a computer program on any other person's computer system, but requires a heightened disclosure requirement when seeking consent where the program in question will perform specified functions that are closely associated with spyware and malware, such as collecting personal information stored on a computer or interfering with the user's control of the computer.

The Act currently requires that the required disclosures (which must describe the program's material elements, its functions and the reasonably foreseeable impact of those functions) must be brought to the attention of the person from whom consent is sought separately from the program licence agreement. The proposed Regulations go a step further to require that this information must be brought to the attention of the person from whom consent is sought separately from any other information provided in a request for consent, and that the consent must indicate that the person understands and agrees that the program performs the specified functions.

Get it in writing

Somewhat ironically, given that they focus on electronic communications, the Regulations further require that the consents required under the Act to send a commercial electronic message, to alter the transmission data in an electronic message or to install a computer program on a computer system must be "in writing."

As we understand it, these provisions were not intended to send users scrambling for quill pens and actual paper documentation; rather, they were intended to require a positive affirmation of consent, other than in oral form, that is captured in a retainable record. The Commission routinely accepts consent in electronic forms for the purposes of its own rules and tariffs that it approves, such as with respect to telemarketing, the confidentiality of customer information or the transfer process for customers switching telephone service providers. That said, the proposed anti-spam Regulations do not make this clear.

We note that s. 41 of the Personal Information Protection and Electronic Documents Act provides that a requirement under a federal law that a document be in writing can be satisfied by an electronic document, but only if the federal law or provision is listed in a schedule to that statute. CASL is not currently listed, nor are we aware of any proposed amending legislation that would accomplish this.

What's next?

The CRTC is accepting comments on the proposed Regulations from interested parties until 29 August 2011. It is expected that the legislation itself will be proclaimed in force following the finalization of these Regulations, sometime in the fall of 2011.

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.

Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
Lindsay Kenney LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
Lindsay Kenney LLP
Related Articles
Related Video
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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