Canada: Reminder: CASL’s Software Installation Provisions Take Effect On January 15, 2015

Phase 2 of Canada's Anti-Spam Legislation (CASL) relating to the installation of computer programs will come into force on January 15, 2015. Commonly referred to as the malware prohibition, CASL goes far beyond prohibiting malware and will impact companies that install computer programs even where there is no improper purpose. As a result, many businesses, including those outside of the software industry, will need to review their practices with respect to installing computer programs and develop compliance strategies in order to comply with this new legislation.

Subject to limited exceptions, CASL prohibits installing, or causing to be installed, a computer program (software) on another person's computer system including a laptop, smartphone, tablet, gaming console or other connected device in the course of commercial activity without the express consent of the device owner or an authorized user (e.g., a family member or an employee).

While in some circumstances consent is presumed, in other circumstances, depending on the function of the computer program, additional notice and consent requirements must be met. On November 10, 2014, the Canadian Radio-television and Telecommunications Commission (CRTC) posted its first substantive guidance materials on the new provisions, which provide some insight as to the policy position the CRTC may take on its interpretation of the new requirements.


CASL applies to computer programs that are both installed and caused to be installed on another person's computer system. CASL does not apply, however, to programs or apps that owners or authorized users download on their personal devices such as computers or mobile devices or to updates they install for such programs, except where the software or the update includes functionality that the owner or authorized user would not reasonably expect. The CRTC guidance materials provide an example of the owner of a mobile device who goes to an app store to purchase and download an app. Since the owner is installing the app on his own personal device, CASL would not apply.

Moreover, CASL does not apply to offline installations such as CDs or DVDs purchased at a store, from which a person knowingly installs a computer program on their own device. Nevertheless, the CRTC has clarified that if the CD/DVD which is installed contains a concealed computer program that is automatically executed when the CD or DVD is inserted into the device, such installation is not exempt and the installer would be requested to obtain appropriate consent since in such case, the distributor or developer will have caused the software to be installed on the person's device.


As is the case for the provisions of CASL dealing with the sending of commercial electronic messages, in order to obtain CASL-compliant express consent to install software, the person granting the consent must make a positive or explicit indication of consent. Therefore, in order to have valid express consent, an individual must take an active step to "opt in," such as by checking a previously unchecked box. Express consent cannot be subsumed in or bundled with requests for consents for other purposes, such as in a licence agreement or terms and conditions of service.

Express Consent not Required in Certain Cases: Deemed Consent

CASL provides that consent is deemed to have been granted if the computer program is:

  • A cookie (as long as it cannot carry a virus and install malware)
  • HTML code
  • JavaScript
  • An operating system (examples mentioned by the CRTC in its guidance materials include, among others, Microsoft Windows, Mac OS/iOS and Android)
  • Any program that is executable through another that was already consented to
  • A program installed by or on behalf of a telecommunications service provider (TSP) solely to protect the security of its network from a current and identifiable threat (note that automobile manufacturers, for example, are TSPs for the purposes of CASL when their vehicles include wireless telecommunications functionality)
  • A program that is installed for the purpose of updating or upgrading a TSP's network
  • A program that is necessary to correct a failure in the operation of the computer system (e.g. bug fixes)
  • A program that is installed for the purpose of updating or upgrading a program for which consent for such update or upgrade has previously been obtained.

Importantly, consent is only deemed in respect of the installation of the above computer programs if the person's conduct is such that it is reasonable to conclude that they consent to such installation. By way of example, the CRTC explains that if a person disables JavaScript in his/her browser, the installer of the JavaScript computer program would not be able to rely on the deemed consent under CASL since the owner or authorized user's conduct indicates the contrary.

Basic Consent Requirements

If the computer program to be installed on another person's computer device is not exempt (i.e. cases where consent is not deemed) and such installation is in the course of a commercial activity, then prior to installing such software the installer must set out clearly and simply:

  • The function and purpose of the computer program that is to be installed
  • The purpose for which the consent is being sought
  • The person who is seeking consent (e.g., the name of the person seeking consent or if consent is sought on behalf of another person, that person's name)
  • If consent is sought on behalf of another person, a statement indicating the person who is seeking consent and the person on whose behalf consent is being sought
  • The mailing address, together with one of a telephone number providing access to an agent or voice message system, an email address or a web address of the person seeking consent
  • A statement that the person whose consent is being sought may withdraw their consent at any time.

We note that the burden of proving consent is on the person claiming to have obtained consent.

Heightened Consent and Notice Requirements for Programs that Perform Certain Functions

Additional information must be provided if the person seeking consent knows and intends that the computer program will cause the computer system to operate in a manner that is contrary to the reasonable expectations of the owner or authorized user, and the computer program performs the following types of functions:

  • Collects personal information stored on the computer system
  • Interferes with the owner's or an authorized user's control of the computer system
  • Changes or interferes 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 system
  • Changes or interferes 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
  • Causes 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
  • Installs 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 performs any of these functions, the person seeking consent must also, prior to the installation of the computer program, clearly and prominently (and separately from a licence agreement):

  • Describe the program's material elements that perform the function or functions, including the nature and purpose of those elements and their reasonably foreseeable impact on the operation of the computer system
  • Bring those elements to the attention of the person from whom consent is being sought
  • Obtain an acknowledgment in writing that the person understands and agrees that the program performs the specified functions.

By way of example, the CRTC guidance materials make reference to someone developing a gaming app for a smartphone or tablet that contains functionality to collect information from the GPS, camera and microphone that would not normally be expected by the user. While CASL may not require the installer to seek consent when the owner or authorized user of the device self-installs the gaming app on their device, the installer would be required to disclose the locator feature as it would not be reasonably expected. In this situation, this functionality, as well as the purpose for which the game collects that information, would need to be disclosed to the owner or authorized user and this description would need to be provided apart from the terms and conditions or end-user licence agreement.

It should be noted, however, that the heightened information requirements set out above do not apply to computer programs that only collect, use or communicate transmission data.


Software updates and upgrades generally bring the software up to date and improve its characteristics. Therefore, updates and upgrades will often have new features and, as such, consent will be required for them to be installed on another person's computer device. For this reason, if a computer program was self-installed by the owner or the authorized user and consent for making automatic updates or upgrades was not obtained at the time of original installation, the person installing the computer program will need to seek consent to install any future updates or upgrades to such software.

However, retrieving current information and displaying it within a program or updating or refreshing information displayed in a program, such as refreshing the weather forecast in a weather app, are not considered updates or upgrades for the purposes of CASL and consent in such case would not be required.


A person installing a computer program that is subject to the heightened information requirements will also need to provide assistance with uninstalling the computer programs. Moreover, if the installer did not accurately describe the function of the computer program at the time that consent was requested, the installer will have an obligation, upon request by the owner or authorized user, to remove or disable the computer program (within a one-year period from the installation of the computer program). Such de-installation must be done as soon as it is feasible and at no cost for the person who provided consent.


According to the CRTC guidance materials, for the purposes of CASL an owner or authorized user includes anyone who has permission to use a computer system. By way of example, in the context of an employment relationship, the employer would be the owner and the employee the authorized user. In the same way, if someone leases a device, the lessor will retain ownership of the device and the lessee will be the authorized user.


CASL applies where a computer program is installed on a computer system located in Canada even if the installation was initiated outside of Canada. In addition, CASL applies if the installation was carried out by a person located in Canada or if the person was acting under the direction of a person in Canada.


CASL contains a three-year transitional period where certain conditions are met. If a computer program was installed on a person's computer system before January 15, 2015, consent to the installation of an update or upgrade to the program is implied until the earlier of January 15, 2018 and the date that the recipient provides notification that they no longer consent to such installations. As a result, businesses that can prove they installed a computer program prior to January 15, 2015 will have some additional time to obtain express consent to install upgrades or updates to those specific computer programs.


The potential penalties for non-compliance under CASL are substantial and include administrative monetary penalties of up to C$1-million for individuals and C$10-million for legal persons such as a corporation. In addition, an employer can be held liable where an employee violated CASL and the employee was acting within the scope of his or her employment, unless the employer can show that due diligence was exercised. In other words, training programs and CASL compliance policies will assist in demonstrating that the organization took reasonable measures to comply with the law.

We also note that there is vicarious liability for directors and officers resulting from a company's failure to comply with CASL where they directed, authorized, assented to, acquiesced in, or participated in the non-compliance, subject to a due diligence defence.

Finally, CASL also creates a private right of action for persons who have been affected by a contravention of CASL's computer program installation provisions. The statutory penalties under the private right of action, namely C$200 per breach, not to exceed C$1-million per day, likely will create an area of focus for class action litigators. However, this Phase 3 of CASL will not come into effect until July 1, 2017. Nonetheless, businesses should be aware that risks of claims based on a breach of CASL exist.


Contrary to the flurry of guidance materials published by the CRTC prior to the coming into force of the main anti-spam provisions of CASL on July 1, 2014, the CRTC has indicated that it will be publishing additional guidance materials based on questions of interpretation and fact scenarios received during its consultation sessions with various industry groups in the coming weeks and months. We will provide an update when such materials are published.

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.

Events from this Firm
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

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.