Bennett Jones
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.
In the English version of CASL, Section 10(8)(a)(iii) refers to "Java Scripts" (two words, plural). The French version refers to "un JavaScript" (one word, singular). At first glance, these minor differences seem innocuous, until you realize that JavaScript has almost nothing to do with the well known Java programming language.
JavaScript is a scripting tool, used in browsers to permit client-side scripts to interact with the user and control the browser. It is also used on server side applications. The Java programming language, on the other hand, can be used to implement stand-alone programs for a variety of applications. Generally speaking, JavaScript does not permit the same degree of direct hardware control as Java, and accordingly is not capable of interference with the reasonable expectations of a user in the same way. We also note that JavaScript is a registered Canadian trademark of Oracle America, Inc. in association with the following wares and services: (i) "Computer programs, namely, utility programs, language processors and interpreters and manuals sold therewith"; and "Transmission of text and multimedia data and programs over a global computer information network, the world wide web and other computer networks".
The CRTC has advised that Section 10(8)(a)(iii) of CASL is meant to refer to "JavaScript," the minimal scripting tool, and not be read as a reference to the robust Java programming language.
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.