Thomas Raffy
Thomas Raffy, Lawyer, McInnes Cooper
Trent Skanes
Trent Skanes, Lawyer, McInnes Cooper
 

On January 15, 2015, the software installation sections of Canada’s Anti-Spam Legislation (CASL) take effect. To find out how to comply, read these 5 frequently asked questions:

  1. What do I have to do? Get consent. A person or company can’t, in the course of commercial activity, install a computer program on another’s computer system, or cause an electronic message to be sent from that installed program, unless the system owner (or authorized user) has “expressly consented” or there’s a court order. Installers don’t, however, require express consent to install:
  • program updates, if a user consents to future updates when she consents to install the program; and
  • the following programs, if the user’s conduct shows it’s reasonable to believe she consented:cookies; HTML code; “Java Scripts” (Industry Canada says it should be “JavaScript”); operating systems; programs executable only through use of another program the user already consented to install; and programs CASL specifies.
  1. How do I get “express consent”? Generally, the installer’s consent request must disclose:
  • why she’s seeking consent;
  • her business name, mailing address, and either her telephone number, email or web address;
  • if she seeks consent for another person, a statement of who’s seeking consent and for whom;
  • a statement that the user can withdraw consent any time; and
  • a clear and simple description of the program’s general function and purposes.
  1. Do some programs require more disclosure? Yes. The installer’s consent request must include a higher level of disclosure if she “knows and intends” a program will cause a system to operate in a way its owner doesn’t reasonably expect. This includes programs the installer “knows and intends” will perform the following functions (unless it only collects, uses, or communicates “transmission data” as CASL defines, the higher level of disclosure isn’t required):
  • collecting personal information stored on the system;
  • interfering with the user’s control of the system;
  • changing or interfering with settings, preferences, or commands already installed or stored on the system without the user’s knowledge;
  • changing or interfering with data stored on the system in a way that obstructs, interrupts or interferes with the user’s lawful access to or use of that data;
  • causing the system to communicate with another computer system, or other device, without the user’s authorization;
  • installing a program that a third party may activate without the user’s knowledge; or
  • performing any other function CASL specifies (there are none yet).

In these cases, the installer’s consent request must clearly and prominently:

  • describe the program’s material elements, including their nature, purpose and reasonably foreseeable impact on how the computer system operates;
  • bring them to the user’s attention separately from any other information she provides in a consent request; and
  • obtain the user’s written acknowledgment that she understands and agrees that the program performs the specified functions.
  1. Can a User Withdraw Consent? Yes. If the higher disclosure requirement applies, the installer must give the user an electronic address valid for at least one year after installation. The installer must assist the user remove or disable the program as soon as feasible, at no cost to the user, if the user requests it within one year of installation, and consent to its installation was based on an inaccurate description of the program’s material elements.
  1. What if I don’t comply?CASL has significant consequences for those that don’t comply, including monetary penalties, criminal charges and a private right of action effective July 1, 2017.

For more information on this topic and CASL visit McInnes Cooper’s CASL Knowledge Page.

CASL Update: 5 FAQs about how to comply with CASL’s new software installation sections is Part 2 of a two-part series on CASL’s new software installation sections. Click here to read Part 1: 5 FAQs to help you decide if CASL’s new software installation sections apply to you.

McInnes Cooper has prepared this article for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this article. McInnes Cooper excludes all liability for anything contained in this article and any use you make of it.

© McInnes Cooper, 2014. All rights reserved. McInnes Cooper owns the copyright in this article. You may only reproduce and distribute it with McInnes Cooper’s consent. Email McInnes Cooper at publications@mcinnescooper.com to request consent.

About the authors:

Thomas Raffy is a bilingual lawyer with McInnes Cooper and a member its CASL, Entrepreneurial Services and Technology Law teams. You can reach him at thomas.raffy@mcinnescooper.com.

Trent Skanes is a corporate lawyer with McInnes Cooper and is also a member of its CASL, Corporate and Business and Privacy Law Teams. He can be reached at trent.skanes@mcinnescooper.com.