Canada's anti-spam law (CASL) is complex and ambiguous, and can result in substantial liability (e.g., a maximum $1,000,000 fine for individuals and $10,000,000 for organizations). Accordingly, many organizations have struggled to find a path to compliance under the law.
The software related prohibitions come into force on January 15, 2015, and so close attention has recently been paid to those complex and difficult provisions.
Among the challenges that organizations that develop and/or distribute software are facing is understanding when and in what context the "deemed consent" provision under Section 10(8) of CASL, apply.
Section 10(8) provides that a person is deemed to have expressly consented to the installation of a computer program if the computer program is a cookie, HTML code, Java Scripts, an operating system, any other program executable only through use of another computer program whose installation and use was previously expressly consented to, or other programs identified under Regulations. In each case, the person's conduct must be such that it is reasonable to believe that they consent to the program's installation “ otherwise, express consent is not deemed to exist.
There are many issues with this deemed consent provision, including how a person can practically decline such consent. However, the present focus of this blog is to note that there is a crucially important difference between the French and English language versions of CASL.
We expect that the CRTC will issue an FAQ in how they plan to interpret this provision. However a proper fix may require legislative change.