Canada's anti-spam law (CASL) is complex and ambiguous, and
can result in substantial liability (e.g., a maximum
$1,000,000 fine for individuals and $10,000,000 for organizations).
Accordingly, many organizations have struggled to find a path to
compliance under the law.
The software related prohibitions come into force on January 15,
2015, and so close attention has recently been paid to those
complex and difficult provisions.
Among the challenges that organizations that develop and/or
distribute software are facing is understanding when and in what
context the "deemed consent" provision under Section
10(8) of CASL, apply.
Section 10(8) provides that a person is deemed to have expressly
consented to the installation of a computer program if the computer
program is a cookie, HTML code, Java Scripts, an operating system,
any other program executable only through use of another computer
program whose installation and use was previously expressly
consented to, or other programs identified under Regulations. In
each case, the person's conduct must be such that it is
reasonable to believe that they consent to the program's
installation – otherwise, express consent is not deemed to
There are many issues with this deemed consent provision,
including how a person can practically decline such consent.
However, the present focus of this blog is to note that there is a
crucially important difference between the French and English
language versions of CASL.
In the English version of CASL, Section 10(8)(a)(iii) refers to
"Java Scripts" (two words,
(one word, singular). At first glance, these minor differences seem
do with the well known Java programming language.
client-side scripts to interact with the user and control the
browser. It is also used on server side applications. The Java
programming language, on the other hand, can be used to implement
stand-alone programs for a variety of applications. Generally
hardware control as Java, and accordingly is not capable of
interference with the reasonable expectations of a user in the same
trademark of Oracle America, Inc. in association with the following
wares and services: (i) "Computer programs, namely, utility
programs, language processors and interpreters and manuals sold
therewith"; and "Transmission of text and multimedia data
and programs over a global computer information network, the world
wide web and other computer networks".
The CRTC has advised that Section 10(8)(a)(iii) of CASL is meant
not be read as a reference to the robust Java programming
We expect that the CRTC will issue an FAQ in how they plan to
interpret this provision. However a proper fix may require
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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Software license agreements generally require the customer to pay fees for the software license and related services, which fees are usually based upon the duration of the license and the manner in which the customer is allowed to use the software, together with applicable taxes and withholdings.
In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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