Anti-spam Legislation

AuthorBarbara Von Tigerstrom
In 2010, Parliament passed An Act to promote the eff iciency and adaptabil-
ity of the Canadian economy by regulating certain activities th at discourage
reliance on electronic means of carrying out commercial activities, and to
amend the Canadian Ra dio-television and Telecommunications Commis-
sion Act, the Competition Act, the Personal Information Protection and Elec-
tronic Documents Act and the Telecommunications Act.1 Although it ha s
no official short title, the Act is commonly known as “Canada’s Anti-
Spam Legislation,” abbreviated as “CASL.” It was enacted in resp onse to
concerns about the impact that spam — broadly defined as unsolicited
commercial electronic messages was having on the Ca nadian econ-
omy. A Task Force on Spam had recommended in 2005 that the federal
government take the lead in pursuing “a multifaceted strategy for stop-
ping spam,” including new legislation.2
Concerns about spam include but extend beyond the protection of
privacy. Personal privacy is engaged in at least two ways: first, we could
conceive of unwanted electronic messages as an intrusion into one’s per-
sonal “space,” analogous to concerns about nuisance phone calls;3 and
1 SC 2010, c 23 [CASL].
2 Industry C anada, Task Force on Spam, Stopping Spam: Creating a Stronger, Safer
Internet, R eport of the Task Force on Spam (Ottawa: Industr y Canada, 2005),
online: /collections/Collect ion/Iu64-24-2005E.pdf at 9
[Task Force Report].
3 See Motherwell v Mother well (1976), 73 DLR (3d) 62 (Alta SC (AD)), discussed
in Chapter 2, Sec tion D(1). See also Andrea Sla ne, “Home Is Where the Internet
Anti-spam L egislation 395
second, the sending of spam often involves the use of personal infor-
mation and email addresses collected and used without indiv iduals’
consent. More broadly, it has been asserted that spam “impedes the effi-
cient use of the internet for personal and busi ness communications, and
threatens the growth and acceptance of legitimate e-commerce,” mak-
ing it “a significant social and economic issue.”4 By undermining con-
sumer confidence in electronic platforms, spa m was (and is) believed
to harm the development of the digital economy. In addition, spam is a
vehicle for other threats, including misleading or deceptive communica-
tions, “phishing” (deceptive emails used to obt ain personal information
for criminal pur poses, such as identity theft or fraud), and the dissemin-
ation of viruses a nd spyware.5 Although technical measures to combat
spam, such as spam fi lters, are commonly used, they are never fully
effective, impose additional costs, and can, in some cases, be counter-
productive by reducing overall confidence in email.6
These concerns are ref lected in the legislative purpose set out in
section 3 of CASL:
The purpose of thi s Act is to promote the efficiency and ad aptability
of the Canadi an economy by regulating commercial conduct th at dis-
courages the use of elect ronic means to car ry out commercial activ-
ities, bec ause that conduct
(a) impairs the availability, reliability, efficiency and optimal use of
electronic means to c arry out commercial activit ies;
(b) imposes add itional costs on busine sses and consumers;
(c) compromises pr ivacy and the security of conf idential information;
(d) undermi nes the confidence of Canadian s in the use of electronic
means of communicat ion to carry out their com mercial activ-
ities in Canad a and abroad.
The Act promotes these purposes by prohibiting sending commercial
electronic messages (CEMs) without consent or without including the
required elements (the sender’s identity and contact information and
a functioning unsubscribe mechanism), altering transmission data of
electronic messages, and installing computer programs without con-
sent. It also amended the Competition Act to add new provisions on
Connection Is: La w, Spam and the Protect ion of Personal Space” (2005) 2 Uni-
versity of Ottawa Law & Technology Jour nal 255.
4 Task Force Report, above note 2 at 7.
5 Ibid at 8.
6 Ibid a t 20.
false and mislead ing representations in electronic messages,7 and the
Personal Information Protection and Electronic Documents Act to add
new provisions on harvesting email addresses and collecting personal
information by accessing computer system s (for example, through spy-
wa re).8 These provisions, along with crim inal offences dealing w ith
related conduct such as fraud or unauthorized acces s to computer net-
works,9 are intended to work together as an integrated strategy against
spam. Responsibil ity for oversight and enforcement is therefore shared
between t he Canadi an Radio-t elevision and Telecommunications
Commission (CRTC), wh ich is responsible for enforcing the substan-
tive provisions of CASL, t he Competition Bureau, and the Office of
the Privacy Commi ssioner of Canada. Most provisions of the Act came
into force in 2014, initially with a th ree-year “grace period” allowing
broader use of implied consent;10 in 2017 all of its provisions took full
effect except for those providing for a private right of action, which, as
discussed b elow, have been suspended indefinitely.
The legislative framework embodied in CA SL and its associated
regulations and guid ance documents has been cr iticized as unclear,
unnecessar ily complicated, and resulting in significant compliance
costs for Canadian businesses.11 A 2017 review of the legislation by the
Parliamentary St anding Committee on Industry, Science and Technol-
ogy yielded a number of recommendations for revision, including clari-
fying some definitions, the consent provisions, and some of the Act’s
exceptions.12 The government ha s acknowledged these recommenda-
tions, but has not yet acted on them.13
7 Competition Act, RSC 1985, c C-34, ss 74.011 & 74.012.
8 SC 2000, c 5, s 7.1 [PIPEDA].
9 See Task Force Report, above note 2 at 11.
10 CASL, above note 1, ss 66 –67.
11 House of Commons, St anding Committee on Industr y, Science and Technology,
Canada’s Anti-Spam Legi slation: Clarifications Are in Orde r (13 December 2017)
(Chair: Dan Ruimy), online: ww ent/Committe e/421/INDU/
Reports/ RP9330839/indurp10/indurp10-e.pdf at 7–14 [Standing Commit tee Report].
12 Ibid.
13 Canada, Minis ter of Innovation, Science and Economic De velopment, “Response
to the Tenth Report of the St anding Committee on Indust ry, Science and Tech-
nology” (16 April 2018), online: /content/Commit tee/421/
INDU/GovRes ponse/ RP9762984/421_INDU_Rpt10_GR /421_INDU_Rpt 10_GR-e.
pdf [Government Respon se to Standing Committe e Report]. The 2019 Digital
Charter st ates that the government i s committed to moderniz ing CASL to “ensure
that the Act bot h protects Canadian s from spam and other electron ic threats and
minimi zes the cost and admin istrative burden of complianc e for organizations”:
Innovation, Scienc e and Economic Development Canada, “Ca nada’s Digital Char-
ter in Action: A Plan b y Canadians, for Cana dians” (Ottawa: Innovation, Sc ience

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT