Anti-spam Legislation

• Author: Barbara Von Tigerstrom
• Pages: 394-436

394

CHA PTER 6

ANTI-SPAM LEGISLATION

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: http://publications.gc.ca /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;

and

(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.

INFORM ATION AND PRIVACY LAW IN CAN ADA396

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 w.ourcommons.ca/Cont 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: www.ourcommons.ca /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