(Note: There have been changes to the legislature since this article was published. Please go here for an update.)
The laws of Canada protect consumers and computer users against improper commercial electronic activities. If you are a Canadian consumer who uses a computer or goes on the internet to research and purchase consumer goods or services, as most of us do, you should know your rights.
Unwanted electronic communications, unsolicited commercial messages, unauthorized computer programs, malware and spyware are different types of improper electronic communications and illicit interferences with the transmission data that are widely known as spam. In today’s time, every computer user deals with spam on a nearly day-to-day basis. Over the years, email service providers have developed sophisticated algorithms to filter out, and computer users have learned to largely ignore, spam. However, spammers seem to be undeterred. They relentlessly spam our electronic mailboxes. Unsolicited emails currently represent over 80 percent of the email traffic worldwide. That is about 400 billion spam messages sent every day, according to a Bloomberg report.
Certain types of spam are harmful to computer systems, and are designed to steal personal information. Others, while not posing a threat to the security of computer systems and personal information, threaten the reliability and accuracy of electronic communications. Even when sent for seemingly legitimate commercial purposes, spam undermines computer users’ confidence in the reliability of electronic communications, undermines fair competition and jeopardizes consumer rights.
Cognizant of the fact that spam is bad for a healthy electronic commerce environment, Canada has enacted comprehensive anti-spam laws to promote the reliability of electronic commercial activities, making our country a world leader in anti-spam legislation.
Canada’s anti-spam laws (also known as Canada’s Anti-Spam Legislation, or CASL) came into force beginning in July of 2014. Designed “to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities,” the anti-spam laws focus on electronic communications and computer software that are used for commercial purposes.
Broadly speaking, the anti-spam laws are aimed at ensuring that the persons or organizations affected by the electronic commercial activities are informed of the purpose of the electronic communication or computer software, are made aware of the identity of the person or organization that intends to use the electronic communication or computer software, and consent to such usage. In accordance with these objectives, the anti-spam laws prohibit sending commercial electronic messages, alteration of the transmission data or installing computer software without consent of the recipients or affected persons and, additionally, require certain disclosures when undertaking these activities. While the anti-spam laws recognize certain exceptions to these general provisions, their rigorous requirements apply to a broad spectrum of electronic commercial activities. The anti-spam laws are expected to enhance transparency, foster consumer rights, discourage unfair practices and suppress illicit and unauthorized collection and use of personal information. In furtherance of these objectives, the anti-spam laws provide for regulatory compliance action as well as private rights of action for prescribed improper electronic activities.
The anti-spam laws’ private rights of action are coming into force this year, on July 1, 2017, after a 3-year transitional period provided by the lawmakers in order for the businesses to educate themselves and adapt their policies and procedures to the anti-spam laws’ requirements.
Representing a meaningful deterrence tool to discourage improper commercial electronic activities and safeguard consumers’ rights, these rights of action are prescribed broadly for the benefit of any individual and organization that is affected by a violation of the anti-spam laws, generally when the underlying improper activity was carried out in Canada or was directed at persons or computer systems located in Canada. Claims may be brought in a court of law with respect to unauthorized commercial electronic messages, unauthorized alteration of the transmission data, unauthorized computer software, unauthorized automatic collection and use of email addresses and misleading representations in commercial electronic communications.
Pursuant to the private rights of action, the affected persons may recover their damages, losses or costs incurred as a result of the prescribed improper commercial electronic activities. Additionally, the private rights of action provide for significant statutory damages of up to $1 million with respect to each day on which a prescribed improper activity occurred without requiring proof of actual damages or costs. Liability is imposed against the violators as well as their directors, officers, agents and mandataries, in the case of corporate violators, further discouraging improper electronic activities and ensuring compliance with the laws.
Canada’s anti-spam laws’ private rights of action supplement the Canadian regulators’ enforcement powers which, since the coming into force of the laws in July of 2014, have resulted in several investigations and proceedings. They also supplement Canada’s consumer protection and competition laws, further promoting consumer rights and protecting consumers against improper activities and unfair practices.
If you are a Canadian consumer or a person affected by improper electronic commercial activities, you have legal rights and remedies available to you in order to recover your losses or costs, and you may receive compensation. To learn more about your legal rights, contact Siskinds LLP’s consumer law group.
 Among other proceedings, on June 29, 2015 and November 20, 2015, respectively, Porter Airlines Inc and Rogers Media Inc entered into voluntary undertakings with the Chief Compliance and Enforcement Officer of the Canadian Radio-television and Telecommunications Commission in relation to certain alleged violations of Canada’s anti-spam laws. In connection with these undertakings, Porter Airlines Inc and Rogers Media Inc paid, respectively, $150,000 and $200,000 to resolve the proceedings relating to the alleged violations. See http://www.crtc.gc.ca/eng/archive/2015/ut150629.htm and http://www.crtc.gc.ca/eng/archive/2015/ut151120.htm.