Part 1 we looked at some basic concepts. In Part 2, we look at
"enhanced disclosure" requirements.
If the computer program that is to be installed performs one or
more of the functions listed below, the person who seeks express
consent must disclose additional information. This disclosure must
be made "clearly and prominently, and separately and apart
from the licence agreement". In this additional or enhanced
disclosure, the software vendor must describe the program's
"material elements" including the nature and purpose of
the program, and the impact on the user's computer system. A
software vendor must bring this info to the attention of the user.
This applies if you, as the software vendor, want to install a
program that does any of the following things, and causes the
computer system to operate in a manner that "is contrary to
the reasonable expectations of the owner". (You have to guess
at the reasonable expectations of the user.) These are the
functions that the legislation is aimed at:
collecting personal information stored on the computer
interfering with the owner's or an authorized user's
control of the computer system;
changing or interfering with settings, preferences or commands
already installed or stored on the computer system without the
knowledge of the owner or an authorized user of the computer
changing or interfering with data that is stored on the
computer system in a manner that obstructs, interrupts or
interferes with lawful access to or use of that data by the owner
or an authorized user of the computer system;
causing the computer system to communicate with another
computer system, or other device, without the authorization of the
owner or an authorized user of the computer system;
installing a computer program that may be activated by a third
party without the knowledge of the owner or an authorized user of
the computer system.
If the computer program or app that you, as the software vendor,
want to install does any of these things, then you need to comply
with the enhanced disclosure obligations, as well as get express
There are some exceptions: A user is considered to have given
express consent if the program is
an operating system,
any other program that is executable only through the use of
another computer program whose installation or use the person has
previously expressly consented to, or
a program that is necessary to correct a failure in the
operation of the computer system or a program installed on it and
is installed solely for that purpose;
the person's conduct is such that it is reasonable to
believe that they consent to the program's installation.
Remember: These additional provisions in CASL which deal with
the installation of software come into effect on January
15, 2015, in less than 3 months. An offence under
CASL can result in monetary penalties as high as
$1 million for individuals and $10
million for businesses.
If you are a software vendor selling in Canada, get
advice on the implications for automatic installs and
updates, and how to structure consents, whether this is for
business-to-business, business-to-consumer, or mobile apps. There
are already more than 1,000 complaints under the anti-spam
provisions of the law. You don't want to be the test case for
the computer program provisions.
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.
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