Preparing for Canada’s Anti-spam Legislation (CASL) - MaRS Best Practices

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How much do you really know about spam? Did you know that all commercial electronic messages (i.e., email, text/SMS, instant messaging, social network messaging), regardless of the expectation of …

How much do you really know about spam? Did you know that all commercial electronic messages (i.e., email, text/SMS, instant messaging, social network messaging), regardless of the expectation of profit, are subject to CASL? On July 1, 2014, Canada’s anti-spam legislation (known as “CASL”) comes into force and compliance will not be optional. Violations under CASL can carry significant monetary penalties for your startup.

CASL also covers:

-Alteration of transmission data
-Unsolicited installation of computer programs (including mobile apps)
-Fraudulent and misleading statements in electronic messages
-Electronic collection and use of personal information

At this MaRS Best Practices event, Karen Durell and J. Andrew Sprague, intellectual property (IP) / information technology (IT) lawyers with Miller Thomson LLP, will:

-Explain the potential consequences and penalties for non-compliance with CASL;
-Review CASL’s prohibitions;
-Explain how CASL seeks compliance;
-Canvass CASL’s permitted exemptions; and
-Explore the types of situations in which CASL might not apply to participants.

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  • 1. Preparing for Canada’s Anti-spam Legislation (CASL) Presented at MaRS Best Practices Series Wednesday, April 16, 2014
  • 2. “Canada’s Anti-Spam Law” It’s Coming… July 1, 2014 April 16, 2014
  • 3. What Does CASL Regulate? •  CASL regulates a broad range of activities, including: –  the sending of commercial electronic messages (not just emails) –  the altering of transmission data in an electronic message –  engaging in fraudulent or misleading practices through electronic messages or websites –  installing computer programs without express consent –  automated collection of electronic addresses (email harvesting) –  unauthorized use of computers to collect personal information April 16, 2014
  • 4. Commercial Electronic Messages (CEMs) •  CASL’s anti-spam provisions prohibit a sender from transmitting a commercial electronic message (“CEM”) to an electronic address, unless: i.  the intended recipient has consented; and ii.  the message includes certain prescribed information. April 16, 2014
  • 5. CASL Compliance •  NEED TO GET CONSENT OR •  Rely upon exemption OR •  Face significant consequences/penalties –  Administrative Monetary Penalties »  A fine of up to $1,000,000 per violation for individuals »  A fine of up to $10,000,000 per violation for any other person (i.e. any legal entity that is not an individual) April 16, 2014
  • 6. CEMs - Definitions •  “Electronic messages” –  Text message / Sound message / Voice message / Image message •  “Commercial” refers to anything that “encourages participation in commercial activity” –  Advertisement of commercial activity –  Expectation of profit not necessary •  “Consent” can be Express or Implied –  An electronic message that requests consent to send a CEM can be deemed to be a CEM –  Must be opt-in consent –  Implied if: “existing business relationship” or an “existing non-business relationship” – for up to 3 years from law coming into force April 16, 2014
  • 7. CEMs Requirements •  CEMs must: –  Include sender identifying information –  Set out sender contact effective for at least sixty days –  Provide “opt out” or “unsubscribe” –  Be at no cost to person “unsubscribing” April 16, 2014
  • 8. Key Exemptions •  Messages from charities to raise funds •  Internal organization messages concerning activities of the organization •  Messages between organizations that have a relationship about activities recipient •  Messages in response to a request, inquiry or complaint April 16, 2014
  • 9. Alteration of Transmission Data •  Prohibited: –  Alteration of transmission data in an electronic message, causing sending to a person other than intended recipient •  Exception: –  Alteration by telecommunications company for network management purposes •  Reason: –  Ensure electronic messages are not sent or copied somewhere other than where the message sender believes his or her message is going •  Applicable if: –  Computer is located in Canada, or if the person is in Canada or acting under direction of a person in Canada April 16, 2014
  • 10. Installing Computer Programs •  Prohibited: –  Installation in course of commercial activity of a computer program on another person’s computer system, or use of an installed program to send a message without the express consent of owner of the computer system •  Deemed Consent: –  For the installation of program (e.g., cookie, HTML, Java script, etc.) •  If reasonable to believe there was consent for installation •  Programs do not contain executable code •  Programs do not carry viruses or have the ability to install malware •  Applies to computer programs that: –  Collect personal information –  Interfere with the control of a computer –  Change or interfere with settings, preferences or commands –  Obstruct, interrupt, or interfere with access to or use of data –  Cause a computer to communicate with another computer without authorization –  Install a computer program that can be activated by a third party –  Perform any other functions specified in the regulations; Does not apply to a function that is only transmission data. April 16, 2014
  • 11. Prohibitions •  False or misleading representations in the sender description, subject matter field, message field, URL or other locator of an electronic message or on a website •  Fraudulent and misleading representations have penalties under both CASL and the Competition Act •  Harvesting •  Unlawful use of computer systems to collect personal information April 16, 2014
  • 12. START TO PREPARE NOW Tips: January 2014 issue of MT’s Charities and Not-for-Profit Newsletter, “Planning for Canada’s anti-spam legislation (CASL) – Suggestions for auditing your organization’s current electronic communications practices” available at http:// millerthomson.com/en/publications/ newsletters/charities-and-not-for-profit-newsletter/ january-2014/planning-for-canadas-anti-spam-legislation. April 16, 2014
  • 13. Contacts J. Andrew Sprague asprague@millerthomson.com 416.595.8556 Karen Durell kdurell@millerthomson.com 416.595.7913
  • 14. April 16, 2014 © Miller Thomson, 2014. All Rights Reserved. All Intellectual Property Rights including copyright in this presentation are owned by Miller Thomson LLP. This presentation may be reproduced and distributed in its entirety provided no alterations are made to the form or content. Any other form of reproduction or distribution requires the prior written consent of Miller Thomson LLP which may be requested from the presenter(s). This presentation is provided as an information service and is a summary of current legal issues. This information is not meant as legal opinion and viewers are cautioned not to act on information provided in this publication without seeking specific legal advice with respect to their unique circumstances.