On January 15, 2015, the provisions of Canada’s Anti-Spam Legislation(CASL) that apply to the installation of computer software came into force. The E-TIPS® newsletter has previously reported on CASL here, here andhere. For further details about the effects of the CASL’s newly in force provisions relating to computer software, please refer to this E-TIPS® article.
With the new provisions of CASL in force, express consent from the owner of the computer system will typically be required to install a computer program on another person’s computer in the course of a commercial activity. There are, however, certain exceptions to the express consent requirement for specific types of software, including cookies, HTML, Javascript, operating systems, software installed solely to correct a failure in a computer system and certain types of software installed by telecommunications service providers.
It is important to keep in mind that certain types of software with functionality contrary to the reasonable expectations of the user listed in section 10(5) of CASL will be subject to enhanced consent requirements set out in section 10(4).
Consent is now also required to install updates and upgrades for software. However, consent for future updates and upgrades can be obtained at the same time that consent for the initial installation of the computer software is obtained. Moreover, the guidance document released by the Canadian Radio-television and Telecommunications Commission (CRTC) provides that a person’s consent for upgrades and updates to software that was installed prior to January 15, 2015 can be implied until January 15, 2018, as long as that person does not expressly withdraw his or her consent for such upgrades and updates.
Businesses and software developers should be mindful of the newly in force provisions of CASL, since a violation of CASL can lead to an administrative penalty of up to $1,000,000 for individuals and $10,000,000 for corporations.
For news reports on this topic, see: CBC and Globe and Mail.
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Disclaimer: This Newsletter is intended to provide readers with general information on legal developments in the areas of e-commerce, information technology and intellectual property. It is not intended to be a complete statement of the law, nor is it intended to provide legal advice. No person should act or rely upon the information contained in this newsletter without seeking legal advice.
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