Canada: CASL's Computer Download Rules – Coming To An App Store Near You

Last Updated: December 11 2014
Article by David Young

On January 15, 2015 the second chapter in Canada's anti-spam legislation ("CASL") saga opens with the coming into force of the law's computer download rules. The download rules while intended to strike at bad actors only, in fact have broader application - to all digital system providers, including, very importantly, app developers and app stores. Subject to certain exceptions, they also apply to any computer system or program provider who delivers software (both the base program and all updates) to a user, electronically (i.e. online).

The full scope of CASL comes into force in a multi-stage process. Its first main thrust, the commercial electronic "messaging" (or CEM) rules, came into force with a delay for certain provisions on July 1, 2014. However CASL is more than just an "anti-spam" statute – it has significant application to unconsented-to disruptive, invasive or otherwise unintended computer communications, including alteration of transmissions and installation of "malware" and "spyware". The download rules are intended to address these activities.

As with CASL's messaging rules, the download rules contain provisions that will require clarification and further interpretation. To assist organizations seeking to achieve compliance by the January 15 in-force date, the CRTC has been holding meetings with representative affected stakeholders and on November 10, 2014 published a guidance document entitled "CASL Requirements for Installing Computer Programs".

Providers/suppliers of computer systems including app stores, developers, and other providers of software including providers of software embedded in products such as automobiles and appliances urgently need to address these new rules and determine what procedures or protocols may be required to continue to market their products post-January 15, 2015.

The Basic Requirements

The computer download rules have two basic requirements - consent and disclosure. Where they apply, a provider is required to obtain consent to a download, unless consent is implied or deemed, and to make disclosure of the nature of the software and how it will impact a user's computer.

The consent required is express consent which, as with the messaging rules, is not defined under CASL but is understood to mean a positive, "opt-in" consent. In addition, when consent is requested, the request must include disclosure according to CASL's standard consent request protocol as well as information specifically stipulated under the download rules.

Two, limited, categories of implied or deemed consent are exceptions to this rule. For previously-installed programs, consent to all updates/upgrades between January 15, 2015 and January 14, 2018 is implied. A second category of program downloads benefit from a deemed consent where it is reasonable to conclude that the user consents to their installation (notwithstanding no specific express consent).

The provider must disclose the function and purpose of the software and, for downloads that perform certain functions contrary to a user's reasonable expectations, more detailed information including a description of the program's "material elements" and its foreseeable impact on the user's system.


The download rules apply to anyone whether or not in Canada who "installs" or "causes to be installed" a "computer program" on another person's "computer system" located in Canada in the course of a commercial activity. They also apply to persons within Canada who perform such downloads onto computer systems anywhere in the world.

Under CASL, "commercial purpose" includes any transaction involving a purchase, sale, or barter of something, whether or not is it expected to produce a profit. As with the messaging rules, the download rules apply to both businesses and not-for-profit organizations. Furthermore, they apply to both purchased and free downloads.

Key Technical Terms

Definitions for CASL's key technical terms – computer program and computer system – are the Criminal Code definitions. Those definitions are very broadly written.

A computer system is a device or network of devices that contains computer programs or other data by which it performs logic, control and other possible functions. Clearly then, a computer system includes not only traditional desktop computers and laptops, but also most if not all tablets and mobile devices.

A computer program is defined as data representing instructions or statements which, when executed in a computer system, causes it to perform a function. A computer program therefore includes any recognized form of software that causes a system to perform functions as well as any updates to that software – including, significantly, apps on mobile devices and updates to those apps.

The terms "install" and "cause to be installed" are not defined by CASL but relevant dictionary meanings would apply (e.g. "make a machine or service ready to be used" – Merriam Webster Online and more specifically for digital applications, "load software into a computer" – Oxford Dictionaries Online). However for the purposes of CASL, the CRTC has indicated that somewhat narrowed definitions for these terms are applicable.

Most significantly, the CRTC has indicated that self-installed software is not included within CASL's application. So, if the device user purchases an app from an app store, which then downloads the app onto the device at the owner's request, the transaction will not be considered an installation by the app store. Similarly, updates to the app, if installed by an action of the owner, will not be subject to CASL. However if an initial app installation results in an update being installed in the background without any request by or notice to the user, or automatic updates are downloaded subsequent to the initial installation without any positive action by the user, the installation or download would be considered installed by the software provider and subject to the download rules.

The CRTC also has indicated that the phrase "cause to be installed" is to be given a narrower meaning – essentially interpreted to mean software that is installed covertly along with other software that a user has installed. This could be malware or merely a supplement to software ancillary to installation of a primary software program. The common element is a secondary installation that results from the installation of a primary software item without knowledge of the user. The CRTC is giving consideration to providing additional guidance as to when a computer program or function is the secondary as opposed to the primary function within a system and when installation is covert or undisclosed.

The CRTC has indicated in its stakeholder meetings that "firmware" or software that is installed by a manufacturer of a product prior to sale will be considered self-installed by the manufacturer and that on sale to a customer, the benefit of self-installation and any consents for updates and upgrades transfer to the buyer.


As with CASL's messaging rules, a key requirement of the download rules is user consent – specifically consent of the "owner" or an "authorized user" of the computer system. The CRTC has indicated that an owner or authorized user includes anyone who has permission to use the device or the computer system. This would extend to employees of a system owner, children, spouses and other relatives of the owner or an authorized user, persons leasing a system or device and maintenance/repair service providers.

As noted above, "express consent" is not defined in CASL. However, requests for consent must conform to the same protocol stipulated for requests for consent under the messaging rules. Consent must be given by an active, positive, act, which can be oral or written; best practice is to obtain consent in a written form (which may include digitally).

The protocol for requests stipulates that the following items be stated:

  • the purpose of seeking consent
  • the name and any carrying on business name of the requestor and any person on whose behalf the request is made;
  • the street address and at least one of a telephone number, email address or website address for the requestor or the person for whom the request is made; and
  • a statement that consent may be withdrawn (best practice is to include a link for unsubscribes).

As well as the consent request protocol requirements, disclosure must be made of certain additional information regarding the nature and impact of the program proposed to be downloaded (see below –Disclosure of Computer Download Information).

It should be noted that express consent obtained prior to the coming into force of the download rules does not need to comply with the request protocol or disclosure requirements. However it is recommended that any current requests for consent made prior to the in-force date should comply with the rules.

Implied and Deemed Consents

The download rules provide for two circumstances when actual express consent is not required.

Consent is implied for any updates or upgrades to existing software downloaded prior to January 15, 2015, for a transitional period of three years. Following this transitional period, consent will be required for all updates/upgrades within CASL's application unless exempted by its deemed consent rules.

Express consent is deemed to have been given for downloads of specified types of software provided that it is reasonable to conclude that the user's conduct is consistent with such consent. This qualifying criterion makes this deemed consent in effect a form of implied consent.

The types of programs for which such deemed consent applies are the following:

  • cookies
  • HTML code
  • JavaScript
  • operating systems programs executable only through another program for which consent has already been given
  • programs installed by a telecommunications service provider for the purposes of protecting its network from security threats, or upgrading its network
  • programs installed for purposes of correcting a defect or failure in a computer or previously-installed software.

The CRTC has provided guidance as to the meaning of certain terms used in this deemed consent provision:

- a "cookie" is a non-executable computer program that cannot carry a virus or install malware;

- an 'operating system" is a computer program that has special access to the hardware of a system and acts as a platform to allow other programs to use the hardware; examples are Microsoft Windows, Mac OS/IOS, Linux, and Android and Blackberry operating systems, as well as embedded systems such as found in automobiles and appliances;

- a "telecommunications service provider" ("TSP") is an organization that provides telecommunications services without any requirement that it own or control the equipment or software on which the services are provided; in this regard, the CRTC indicates that automobile manufacturers would be TSPs if their vehicles contain wireless functionalities;

- "correcting a failure" includes taking steps to ensure the safe and proper functioning of computer programs and systems which would include fixing security vulnerabilities and software errors, including "bug fixes".

Disclosure of Computer Download Information

The second key requirement of the download rules is that, in addition to the basic consent request protocol, a person proposing to download software must also disclose certain information regarding the program to be installed and, for a specific category of programs, more detailed information regarding its functions.

For all downloads, when seeking consent the provider must clearly and simply describe in general terms the function and purpose of the program to be installed. However, for programs that perform certain defined functions that the provider knows will cause the user's system to operate in a manner not reasonably expected by the user, the provider must also clearly, prominently and separately from any other information provided, describe the material functional elements of the program including their purpose and their reasonably foreseeable impact on the system's operation. Furthermore, the provider must obtain the user's acknowledgement in writing (which may be digital) of the program's specified functions.

Downloads that are subject to these more rigorous disclosure requirements are those that:

i) collect personal information stored on the computer system;

ii) interfere with the user's control of the system;

iii) change or interfere with the system settings or commands without the user's knowledge;

iv) change or interfere with data stored on the system in a manner that interferes with the user's lawful access to that data;

v) cause the computer system to communicate with another system or device without the user's authorization; or

vi) install a program that may be activated by a third party without the user's knowledge.

An ancillary rule is that a provider is required, for a period of one year following the installation, to assist a user to remove or disable software that performs one of these functions if the description of the function, purpose or impact of the software given to the user was inaccurate.

These more rigorous disclosure requirements clearly impose a higher and more explicit level of information to be provided to users. While they clearly apply to, and are intended to prevent, surreptitious download of malware and other unwanted software, they also would apply to any legitimate download that fits the criterion of "not reasonably expected" by the user. This potential impact is consistent with the broad application of the download rules.

An example could be automatic updates to a gaming app that contain a functionality to collect location or video data. While the initial download of a "user-installed" app would not require consent, automatic updates may be subject to the more extensive disclosure rules. Another example of where the rules may apply would be an app, or an update, that results in the system or device sending data to another computer without the user's consent. Again, this requirement responds to concerns with unauthorized information extraction caused by malware or spyware; however it also could apply to legitimate app functions that result in data (such as location data) being extracted from the system or device without the user's acknowledgement.

For software downloaded in connection with a user-installed app, a key consideration in avoiding the more onerous disclosure requirements is sufficient disclosure at the time of initial installation. This disclosure should be directed to ensuring that the software is considered user-installed and not treated as a covert installation by the provider. Furthermore, disclosure should be sufficient to negate any argument that the app's functionality was "not reasonably expected" by the user.

Compliance Checklist

CASL's download rules will have significant impact for software vendors, app developers and vendors of the increasing number of offline products incorporating embedded software connected to wireless networks. To ensure compliance with the rules, the following key items should be addressed:

  1. Review and confirm status of existing consents for in-place software and for future updates/upgrades.
  2. Review procedures and characteristics of all software installations to determine installation status (provider vs. user) and therefore applicability of the download rules.
  3. Confirm procedures and disclosures made in connection with user-installed software to ensure that user is aware of the existence and functions of any ancillary software.
  4. Identify programs that qualify for deemed consent and review disclosures to ensure that the user's reasonable expectation is consistent with consent.
  5. Review potential applicability of the enhanced disclosure rules – the characteristics and functions of all software and whether or not they are within the user's reasonable expectations.
  6. Develop and put in place consent protocols including disclosure compliance where consents are required for future downloads/updates/upgrades.

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
Check to state you have read and
agree to our Terms and Conditions

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.

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 by clicking here .

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.


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.