www.lexpert.ca | LEXPERT • June 2014 | 13
ANTI-SPAM
»
PHOTO:
SHUTTERSTOCK
ANTI-SPAM
LAW IN
EFFECT
AMONG THE MOST daunting developments for US companies doing business
in Canada is Canada's new anti-spam and anti-malware law (CASL), more formally known as
the Electronic Commerce Protection Act, most of which comes into eff ect on July 1, 2014. It has
extra-territorial eff ect, applying whenever a computer located in Canada sends or accesses com-
mercial electronic messages (CEMs) regardless of the destination or the point of origin.
"" is means that CASL's consent and unsubscribe strictures apply to foreign messages such
as those sent by foreign organizations to Canadian customers or proposed customers and to
messages that are stored on foreign servers and accessed from Canada," says Barry Sookman
in McCarthy Tétrault LLP's Toronto offi ce. "And the liability is strict. It does not depend on
intent or foreseeability."
What hasn't received as much publicity, but is equally applicable to US and other foreign
companies, is that CASL includes broad prohibitions making it illegal to install any computer
program on another person's computer located anywhere in Canada without making prescribed
disclosures and without obtaining consent in the prescribed form. " ese strictures, which come
into force on January 15, 2015, apply to upgrades and updates, regardless of whether a program
includes malware or spyware.
"" e law is so broad it applies not only to apps, but also to programs in embedded systems
including those in vehicles and consumer and industrial products," Sookman says. "Accordingly,
if you sell or service almost any product to Canadians, either directly or through channels, CASL
will likely apply to you."
CASL, Canada's anti-spam and anti-malware
law, is coming into effect this summer.
US businesses operating in Canada face
huge burdens JULIUS MELNITZER
