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. Like CASL’s anti-spam sections, which took effect on July 1, 2014, the software installation sections impose broad and onerous procedural requirements for companies and individuals installing computer programs on computer systems.

To help you decide if CASL’s new software installation sections apply to your activities or those of your organization, here are the answers to 5 frequently asked questions:

  1. What do the new software installation sections apply to? CASL’s software provisions only apply to “computer programs” that are “installed” on another person’s “computer systems” in the “course of commercial activity.” They apply to installations on computer systems located in Canada even if the installation originated elsewhere, and to installations on computer systems currently located outside of Canada if the installer was in Canada (or acted under the direction of a person in Canada) when she installed the program.
  1. What are computer “systems” and “programs”? The definitions are borrowed from the Canadian Criminal Code:
  • “Computer system” means a device (or a group of interconnected or related devices one or more of which) that: contains computer programs or other data; and pursuant to computer programs, performs logic and control, and also may perform any other function besides logic and control.
  • “Computer program” means data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function.
  1. What’s “installed”? It’s not clear yet. CASL doesn’t define “install” or “installer”, and the CRTC hasn’t said how it will approach it.
  1. What’s “in the course of commercial activity” CASL defines “commercial activity” as any course of conduct of a commercial character, whether or not carried out in the expectation of profit. The software installation sections don’t apply to programs designed for law enforcement and public safety purposes. They also don’t apply when owners, or authorized users, install software on their own computer systems (for example personal computers, mobile devices or tablets). But it’s not yet clear whether they apply to computer software an employer installs on employee devices, particularly in the “Bring Your Own Device” context, or on its affiliate or client computer systems for internal operational reasons.
  1. When do installers have to comply with CASL’s software installation provisions? Installers must comply when installing any new programs starting January 15, 2015. However, if a computer program was installed on a user’s computer system before January 15, 2015, the installer has the user’s implied consent to install an update or upgrade until the earlier of January 15, 2018, or the date the user gives notice that she no longer consents to the installation.

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

CASL Update: 5 FAQs to help you decide if CASL’s new software installation sections apply to you is Part 1 of a two-part series on CASL’s new software installation sections. To find out how to comply if they do, click here for Part 2.

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.