A Look at Canadian Privacy and Anti-Spam Laws

By Sirivar, Junior; Wolch, Shana | Defense Counsel Journal, October 2017 | Go to article overview

A Look at Canadian Privacy and Anti-Spam Laws


Sirivar, Junior, Wolch, Shana, Defense Counsel Journal


Canada's comprehensive federal and provincial privacy laws regulate how organizations collect, use, and disclose personal information in the course of conducting or operating their businesses. These laws are intended to protect individual privacy rights and, in doing so, require that organizations take reasonable steps to ensure that such rights are sufficiently protected. Canadian privacy laws can have a significant impact on organizations' policies and practices while operating in Canada.

Organizations must establish reasonable security measures to protect personal information that crosses international borders. The obligations imposed by privacy laws supplement existing obligations respecting transparency, consent and safeguarding. Moreover, organizations need to provide assurances that the foreign thirdparty service provider's privacy practices provide a comparable level of protection as to that which is required under Canadian law, recognizing that the laws of the foreign jurisdiction cannot be overridden.

Canadian privacy laws provide a mechanism that is intended to facilitate more streamlined transactions where such transactions involve the collection, use or disclosure of personal information. Corporations operating, or looking to operate, in Canada must be aware of the obligations imposed on them by these laws as a failure to do so can have significant repercussions.

This paper will aid those that are operating or seeking to do business in Canada by promoting compliance with Canada's privacy and antispam laws, which will in turn prompt strong and effective business activities. Specifically, we discuss the obligations imposed by Canada's anti-spam legislation, more commonly referred to as "CASL,"1 as well as the other federal and provincial privacy laws that outline the framework and rules for the collection, use and disclosure of personal information by federallyregulated private-sector organizations operating across Canada.

These laws are not intended to restrict businesses from operating in Canada. Rather, they seek to support commerce, including electronic commerce, and promote the adaptability of the Canadian economy and market by clarifying expectations and rights for protecting an individual's privacy while in the process. Public confidence in the integrity of a business's operations is of key importance to operating successfully. By developing appropriate policies and corporate strategies, organizations can comply with the applicable privacy law

requirements while mitigating risks associated with improperly collecting, using or disclosing personal information in potentially damaging manners.

I.CASL: Canada's Anti-Spam Law

A.General

CASL is a comprehensive legislative regime created to combat spam. It is aimed at preventing organizations, including foreign ones, from sending unsolicited or misleading commercial electronic messages ("CEM") or programs to consumers without their consent. In particular, CASL introduces the requirement to obtain the consent of a recipient before an organization sends a CEM. This requirement extends to email messages, messages to social networking accounts and text messages to smart phones.

B.Principles

CASL came into force on July 1, 2014 and is widely considered to be among the most comprehensive, and to an extent onerous, commercial electronic messaging statutes in the world. It has significant implications for Canadian businesses, not-for-profit organizations, and individuals using electronic communications. CASL also applies to foreign organizations that operate or do business in Canada, or that send commercial electronic messages to Canada.

CASL's provisions regarding CEMs extend far beyond typical "spam" emails. A CEM is an electronic message that is intended to encourage participation in a commercial activity. When determining if an electronic message encourages a commercial activity, the content of the message, the hyperlinks in the message or the contact information contained in the message may all be considered. …

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