Canada's Anti-Spam Law (CASL) targets more than just email
and text messages
CASL also prohibits installing a "computer program"
– including an app, widget, software, or other executable
data – on a computer system (e.g. computer, device)
unless the program is installed with consent and
complies with disclosure requirements. The
provisions in CASL related to the installation of computer programs
will come into force on January 15, 2015.
Application outside Canada
Like CASL's email and text message provisions, the
Act's "computer program" installation provisions
apply to persons outside Canada. A person contravenes
the computer program provisions if the computer system (computer,
device) is located in Canada at the relevant time (or if the person
is in Canada or is acting under the direction of a person in
The maximum penalty under CASL is $10 million for a violation of
the Act by a corporation. In certain circumstances, a
person may enter into an "undertaking" to avoid a
Notice of Violation. Moreover, a private right of action
is available to individuals as of July 1, 2017.
CASL's broad scope leads to fundamental questions
- how does it apply?
The broad legal terms "computer program",
"computer system" "install or cause to be
installed" have raised many fundamental questions with
industry stakeholders. The CRTC – the Canadian
authority charged with administering this new regime – seems
to have gotten the message. The first part of the
CRTC's response to FAQ #1 in its interpretation document
CASL Requirements for Installing Computer
Programs is "First off, don't panic".
New CRTC Guidance
The CRTC has clarified some, but not all of the questions that
industry stakeholders have raised. CRTC Guidance does clarify
Self-installed software is not covered under CASL. CASL
does not apply to owners or authorized users who are installing
software on their own computer systems – for example,
personal devices such as computers, mobile devices or tablets.
CASL does not apply to "offline installations", for
example, where a person installs a CD or DVD that is purchased at a
Where consent is required, it may be obtained from an employee
(in an employment context); from the lessee of a computer (in a
lease context); or from an individual (e.g. in a family context)
where that individual has the "sole use" of the
An "update or upgrade" – which benefits from
blanket consent in certain cases under CASL – is
"generally a replacement of software with a newer or better
version", or a version change.
Grandfathering – if a program (software, app, etc.) was
installed on a person's computer system before January 15,
2015, then you have implied consent until January 15, 2018 –
unless the person opts out of future updates or upgrades.
Who is liable?
CRTC staff have clarified that as between the software developer
and the software vendor (the "platform"), both may be
liable under CASL. To determine liability, the CRTC proposes
to examine the following factors, on a case-by-case basis:
action a necessary cause leading to the installation?
was their action reasonably proximate to the installation?
was their action sufficiently important toward the end result
of causing the installation of the computer program?
CRTC and Industry Canada staff have indicated that they will be
publishing additional FAQs, in response to ongoing industry
See: fightspam.gc.ca and consider signing up
for information updates through the site.
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