Canada: Digesting Canada's Tough New Anti-Spam Laws

Last Updated: September 26 2014
Article by Kate Terroux

Most Canadians are certainly in favour of reducing unwanted spam in their mailboxes, but Canada's new anti-spam law (CASL) has been met with hesitation by both businesses and consumers. Critics have called the new law "the world's toughest anti-spam law." There are concerns that CASL won't be effective in combatting the most insidious sources of spam, which often originates outside of Canada. There are also concerns that CASL's broad provisions will be onerous on Canadian businesses, and that the law is likely to be found unconstitutional, but there really hasn't been much written on why that is. This post explores these concerns through an international perspective on the fight against spam. When viewed in this context, CASL can be seen in a different light.

For those who don't know much about CASL, it is legislation that helps encourage electronic commerce and protect Canadians from spam by regulating conduct that discourages the use of electronic commercial activities that compromise privacy. CASL prohibits sending unsolicited commercial electronic messages (CEM) to electronic addresses in Canada, as well as installing computer programs without express consent, and altering transmission data. The CEM provisions of CASL came into force on July 1, 2014. Additional provisions regulating the installation of computer programs will come into force on January 15, 2015, and there will be a private right of action available to those complaining of violations as of July 1, 2017. There are steep penalties for CASL violations, including administrative monetary penalties (AMPs) up to $1,000,000 per violation for individuals and up to $10,000,000 per violation for businesses. Directors and officers can also be held vicariously liability for violations under the Act.

Reducing Spam in Canada through International Collaboration

Critics of CASL often claim that it will be ineffective because most spam originates outside of Canada. While it is true that only a small amount of the spam received by Canadians actually originates in Canada, this claim ignores the fact that spam is a serious and rapidly escalating global issue, which, like the internet, knows no borders. It is harmful to both consumers and to organizations that rely on electronic commerce, and the enactment of multilateral agreements, as well as laws like CASL, globally across jurisdictions forms an integral part of the solution. The United Nations Working Group on Internet Governance (WGIG), which released a Report in June, 2005 stressed that, "there is a need for global coordination among all stakeholders to develop policies and technical instruments to combat spam." Similarly, in the 2006 Organisation for Economic Co-operation and Development's (OECD) Task Force on Spam Report ("OECD Report"), it was noted that "global co-operation is fundamental to promote appropriate domestic frameworks to counter spam in all countries, and to encourage co-operation among governments, private sector, civil society and other stakeholders."

Canada has made efforts to take a leading role in the fight against spam from the outset. This commitment was reflected in the following statement made in the Canadian Task Force on Spam's 2005 report, Stopping Spam: Creating a Stronger, Safer Internet, 'Canada has an obligation to exercise international leadership in combatting spam. One major contribution the country can make is to reduce the amount of spamming in Canada." This wording was mirrored in Industry Canada's Regulatory Impact Analysis Statement (RIAS) on the Electronic Commerce Protection Regulations. The Task force also noted that, "The actions that we take within Canada to reduce the amount of spam will only have a limited effect on the amount of spam arriving in Canadians' email inboxes, unless these actions are complemented and reinforced by strong, effective international cooperative actions against spammers."

Another significant reason for Canada to take this role was articulated by Michael Geist in the first of his two part series of blog posts in defence of CASL, in which he noted that, "Canada's role in global spam is larger than most might think. The Register of Known Spam Operations is a database of the world's largest spamming organizations... The list currently identifies seven organizations based in Canada, making us the third largest home of spamming organizations in the world, behind only the United States and Russia." Viewed in this context, the need for a comprehensive law targeting spam in Canada seems clear. It's a shared international responsibility.

One of the ways that countries have worked together to combat spam is through the implementation of multilateral agreements. According to the Canadian Task Force Report, which recommended that Canada pursue agreements on anti-spam policies and strategies with foreign governments, Canada has already participated in a variety of multilateral initiatives. These include the London Action Plan on International Spam Enforcement Cooperation, as well as agreements with key international partners including with Australia, the United Kingdom, the United States, and the European Commission. Canada also actively participated in the OECD's Task force by completing a comparative analysis of the anti-spam legislative frameworks that were in place internationally at the time of the Report, and developing a comprehensive and multi-faceted anti-spam toolkit for countries to use in developing public policy and legislative frameworks for addressing spam.

Another way that the international community is collaborating to reduce spam is through the harmonization and effective enforcement of anti-spam laws. The International Telecommunication Union (ITU), which is the United Nations' specialized agency for information and communication technologies, released a Survey on Anti-Spam Legislation Worldwide in 2005. The survey revealed that not all countries had spam laws, and amongst those countries that did, the laws were varied, usually in relation to their approaches to consent. Some required business to obtain "opt in" consent before sending CEMs, while others required "opt out" consent or required senders to use a label in the subject line of a CEM.

According to the Survey, the first anti-spam law was enacted in 1997 in the State of Nevada. Significant developments in anti-spam laws since then have included the enactment of the European Directive on Privacy and Electronic Communications (2002/58/EC) in 2003, as well as Australia's Spam Act 2003, and the United States CAN-SPAM Act in 2004. Unlike CASL, which requires businesses to use an "opt-in" approach when it comes to commercial electronic messages, the US's CAN-SPAM Act is based on an "opt-out" model, where implicit consent to receive these messages is assumed, unless recipients take steps to remove their consent. Unfortunately, an effective approach has yet to be found, and the laws that have been enacted have had little effect on the explosive growth of unwanted spam.

So what makes anti-spam legislation effective? One difficulty faced by regulators in drafting effective anti-spam legislation that supports a harmonized global approach is that there is no internationally recognized definition of spam. The Canadian Task force's analysis of the experiences of other countries efforts in reducing spam demonstrated the importance of an "opt in" approach that incorporates clear, unambiguous policies and legislation, resolves jurisdictional issues, and provides rigorous enforcement mechanisms. These measures complement other non-regulatory measures including industry-specific private sector activities, technical solutions, as well as education and awareness initiatives.

Tracking down and identifying spammers can be difficult and costly, requiring considerable resources. Accordingly, the ITU's discussion paper on Countering Spam: How to Craft an Effective Anti-Spam Law emphasized the importance of minimizing hurdles faced in prosecuting spammers across jurisdictions. It also recommended that regulators focus on the most significant concerns identified related to spam, including fraud and pornography, and limit negative impacts on legitimate businesses. The OECD Report recommended putting strong enforcement mechanisms, including appropriate standards of proof in place, and allocating sufficient resources to enforcement authorities. It also recommended that the legislation should support international cooperation and cross-jurisdictional information sharing amongst authorities in the fight against spam.

While CASL meets most of these principles, it seems to fall short in terms of legislative simplicity. Indeed, the new law appears to be anything but simple to interpret, and has proven to be complicated, time-consuming and costly for businesses trying to implement it, especially for small businesses. This, as well as the law's cross-jurisdictional reach within Canada could be where constitutional challenges may arise.

Questions about Constitutionality

Concerns surrounding the constitutionality of CASL involve its breadth and proportionality in relation to its primary objective, as well as federalism. In 2012, Ravi Shukla wrote a comprehensive discussion on the constitutionality of CASL for the Internet and E-Commerce Law in Canada Newsletter, which focused on the issue of federalism. An earlier article from the same year by Justice Bastarache, Former Justice of the Supreme Court of Canada (SCC), addressed the constitutionality of the Personal Information and Protection of Electronic Documents Act("PIPEDA") in light of the Court's 2011 decision in Reference Re Securities Act. Both of these articles provide insight into what constitutional arguments are likely to be made in the event of a Challenge to CASL.

The federalism issue relates to whether or not a law represents a legitimate exercise of the federal government's power over general trade and commerce under section 91 of the Constitution Act, 1867 (the "Constitution"), or whether it impinges the provinces' authority over property and civil rights, and matters of a merely local and private nature under subsection 92 of the Constitution. The SCC set out five tests for determining whether or not an impugned law has the requisite national focus, in its 1989 decision, General Motors of Canada Limited v. City National Leasing. First, whether the law is part of a general regulatory scheme; second, whether the scheme will be monitored by the continuing oversight of a regulatory body; third, whether the law is concerned with trade as a whole, rather than a particular industry; fourth, whether the law is of a nature that the provinces would be constitutionally incapable of enacting; and finally, whether the failure to include one or more of the provinces in the legislative scheme would jeopardize the successful operation of the scheme in other parts of the country.

Shukla noted that while the federal government took multiple approaches in supporting its position that PIPEDA's enactment was valid under the federal trade and commerce power, it had not taken similar steps in support of CASL. For example, under PIPEDA provinces are permitted "opt-out" if they enact "substantially similar" legislation, such as British Columbia's Personal Information Protection Act. Organizations that are subject to these provincial privacy laws are exempt from PIPEDA. Despite this provision, the government of Quebec initiated a formal court challenge to the constitutionality of PIPEDA in 2003, but the case was suspended since 2006 when Quebec's privacy legislation met the test for substantial similarity to PIPEDA.

According to Justice Bastarache, concerns over the constitutionality of PIPEDA were increased when the SCC held that the proposed Canadian Securities Act was not supported under subsection 91(2) of the Constitution in Reference Re Securities Act. The federal government had sought an advisory opinion from the Court as to whether it had legislative power to create a national regulatory scheme for securities under the proposed Securities Act. The Supreme Court was unanimous in finding that it did not. In its decision, the Supreme Court provided some clarification on the government's general trade and commerce power. It reaffirmed the test set out in General Motors, finding that the power must give meaningful scope while preserving provincial autonomy.

The Court found that the proposed Act was overreaching, and viewed as a whole, did not fall within the federal government's general trade and commerce power. While the economic importance of the securities and some aspects of the Act went beyond a specific industry were national in scope, the day to day regulation of the securities market was not a national concern. The effects of the Act would be to duplicate and displace the existing provincial securities regime; and the objectives of national harmonization, presenting a unified face internationally, and reducing inefficiencies were insufficient to justify federal regulation. Importantly, the Court noted that its opinion did not "address the question of what constitutes the optimal model for regulating the securities market", but instead reflected the constitutionality of the model proposed under the Act. A cooperative approach that recognized the essentially provincial nature of securities regulation while allowing the federal government to deal with genuinely national concerns might have passed constitutional scrutiny.

Applying the five the tests outlined in General Motors to CASL, it remains to be seen whether or not Canadian courts will find that the new law is a legitimate exercise of the federal government's power over trade and commerce. It could be argued that CASL would meet the first test because it incorporates a complex legislative scheme. However, it could also be argued that it is a regulatory scheme not primarily directed at trade and commerce, and is actually more of a privacy related regime like PIPEDA. According to Michael Geist however, in the second part of his recent blog posts in defence of CASL, it was always intended to be more than an anti-spam law. In fact, its stated purpose reflects the promotion of the "efficiency and adaptability of the Canadian economy by regulating conduct that discourages the use of electronic means to carry our commercial activities."

CASL will likely satisfy the second test because it is monitored by the continuing oversight of three federal regulatory bodies, including Industry Canada, the Canadian Radio-television and Communications Commission ("CRTC") and the Office of the Privacy Commissioner ("OPC"). It is also likely to satisfy the third test because it is concerned with electronic trade as a whole, rather than a particular industry. However, CASL may or may not be legislation of a nature that the provinces would be incapable of enacting. This is because it is unclear whether or not the provinces could effectively regulate commercial electronic activities related to spam across inter-provincial and international jurisdictions. Unlike, PIPEDA which involved a cooperative regulatory scheme in which the federal government provided a minimum standard for privacy legislation, as well as an opt-out mechanism for provinces that enacted substantially similar legislation, CASL provides a unified national regulatory scheme which does little to protect provincial autonomy. It is possible that CASL would meet the fifth test. A lack of regulatory harmonization could jeopardize the success of CASL's regulatory schemed and undermine Canada's ability to meet international obligations in relation to the fight against spam. Although there are some provincial laws related to electronic commerce, including Ontario's Electronic Commerce Act, 2000, there are no long-standing provincial laws in place related specifically to spam.

Finally, concerns surrounding the constitutionality of CASL also involve its breadth and proportionality. Industry Canada's FAQs for Businesses and Organizations notes that, "CASL sets a new standard for spam laws around the world." The negative impact of CASL on legitimate Canadian businesses - and small businesses in particular - in terms of its significant compliance costs, such as the need to put systems in place to track consent, may be disproportionate to its primary objective. This impact might have been reduced by narrowing the impact of the legislation to the most harmful spam offenders, such as those engaged in fraudulent activity. Despite the controversies surrounding CASL, individual Canadians appear to have embraced the new anti-spam legislation, with almost 50,000 complaints received by the CRTC in the first month following its coming into force according to a recent article by Glenn Kauth in Law Times. The sheer volume of complaints makes it much more likely that a constitutional challenge will be launched by a business at the receiving end of a significant penalty.

This article originally appeared in Legal Crossroads.

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
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
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