In November 2020, a public reminder was issued to companies involved in the mobile applications industry about their legal obligations under Canada’s Anti-Spam Legislation.
The enforcement of CASL sparked changes in the Personal Information Protection and Electronic Documents Act ("PIPEDA") to prohibit certain ways in which companies manage, collect, use and disclose third party personal information. Recent amendments made by CASL with respect to PIPEDA include the requirement for consent to collect, use and disclose personal information. Previously, this rule did not apply where electronic addresses are collected by the use of a computer program. The Office of the Privacy Commissioner of Canada (“OPC”) has considered that the collection of personal information by prohibited access to a computer system and the use of the collected personal information and the use of address collection of computer programs to collect personal information without consent and the use of the collected electronic address is prohibited. The enforcement of this amendment also sparked changes to The Competition Act, prohibiting false and misleading advertisements. As a result, companies are encouraged to review and revise practices to ensure compliance with CASL, PIPEDA and the Competition Act.
The Competition Act
The general provisions under this legislation can be both civil or criminal. That's right, you can be criminally penalized for having an advertising campaign that is misleading. What is considered misleading advertising? An advertisement that is accused of being misleading could gain this title if any marketing campaign has falsely promoted, supplied or sold a product or business.
What are the elements of a misleading advertisement?
The elements used to consider whether an advertisement is misleading includes:
How was the advertisement presented? Was it posted online, or printed?
Was the advertisement made public?
Did the advertisement promote a product or business/business interest?
Was the advertisement misleading or false? That being, the information being advertised was false.
Is the material on the advertisement false? such as the pricing or performance claims.
What is CASL?
CASL was created to deter unsolicited commercial electronic messages (CEMs), or as we know it as spam emails. It applies to any individual or company that is sending emails to a recipient in Canada as long as the purpose of the email is to encourage participation in a commercial activity, such as the sale of a product. In order to send a commercial email that is in compliance with CASL, the sender must have either the recipient’s express or implied consent to receive the email or has ensured that the recipient falls under the itemized list of exemptions for consent. CASL dictates the content that is included in the email message, including sender information and unsubscribe mechanisms.
What Happens if You Don’t Comply with CASL?
The Canadian Radio-television and Communications Commission (“CRTC”) can issue administrative penalties for CASL infractions, which includes monetary penalties. In addition, the CRTC can prescribe corrective measures. As a new piece of legislation, CASL included a sunrise period for private rights of action whereby the cause of action was expanded to also include contravention of PIPEDA and the Competition Act.
What is PIPEDA?
The Personal Information Protection and Electronic Documents Act is a federal legislation that governs how companies manage, collect, use and disclose third party personal information gathered in Canada in the course of a commercial transaction.