In 2014, Canada joined the many countries that have already
enacted anti-spam laws with the coming into force of Canada's
Anti-Spam Legislation (CASL). The CASL provisions regulating the
installation of computer programs come into force on
January 15, 2015.
The following presents general information about the CASL
computer program installation provisions and the effect these
provisions may have on your business.
Prohibition on Installation of Computer Programs in the
Course of Commercial Activity without Prior Consent: CASL
provides that a person must not, in the course of a commercial
activity, install or cause to be installed a computer program on
any other person's computer system, without consent. In this
context, the term "computer program" is broadly defined
to include most software applications, while the term
"computer system" includes not only traditional
computers, but other connected devices, including tablets,
smartphones, gaming consoles, computerized appliance, computerized
vehicle, or any other connected device that incorporates hardware
and computer program components.
Consent Required for Installations, Upgrades &
Updates: CASL requires that consent be obtained for both
the initial installation of a computer program and all future
updates or upgrades to the computer program.
In most instances express consent for a computer program
installation is required under CASL, however there are some
allowable exemptions, including those discussed below.
Request for Consent: When a request for consent
is provided to a user, specific information must be provided,
(i) the name of the party seeking consent;
(ii) contact information for the party seeking consent;
(iii) the reason why consent is sought;
(iv) a statement indicating that consent can be withdrawn at any
(v) a description of the function and purpose of the computer
program to be installed.
Deemed Consent for Certain Computer Programs:
The CASL rules provide that a person is deemed to have expressly
consented to the installation of certain types of computer programs
if that person's conduct is such that it is reasonable to
believe that he or she consents to the installation. The types of
computer programs to which the deemed consent rule applies include
installed solely to correct a failure in a computer system, and
software installed by a telecommunications provider to protect
network security, upgrade a network, and/or prevent the failure of
a computer system or program.
Self-Installed Computer Programs: The CASL
rules do not apply when the owner (or authorized user) of a
computing device installs a computer program on his or her own
Self-Installation & Updates/Upgrades: The
CASL rules also apply to the installation of upgrades or updates to
a computer program, even if the original computer program was
Additionally, even if a user self-installs an update or upgrade
to a computer program, the CASL rules will still apply if the
update or upgrade is considered to have certain functions that are
particularly invasive and which are which would not normally be
expected by the user.
Penalties: Under CASL, the CRTC can impose
monetary penalties up to $1 million per violation by an individual,
and up to $10 million per violation by an organization. The factors
to be considered in a determination of appropriate enforcement
measures include: the nature of the violation, the seriousness and
impact of the violation, the history of non-compliance, and
measures to prevent future violations.
To find out more about the CASL computer program installation
provisions, and how Miller Thomson can assist your organization in
managing its compliance with CASL, please contact any of our CASL
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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