On July 1st, 2014, the Government of Canada is putting into effect a new Anti-Spam Legislation(aka CASL). This will affect everyone in a corporate business who uses digital means including email, SMS, and chat as a way of connecting with and recruiting new clients. For now, we can only read and speculate on what will and will not clearly fall under this new legislation until some cases have been tried and precedents are put into place. The good news is that while this is all being sorted out between business and government, public to public suits are not allowed until July 2017.
In the interim, we have provided some information below crafted by the Government of Canada that answers some questions before we step into this new uncharted territory.
What is spam?
Spam can be defined as any electronic commercial message sent without the express consent of the recipient(s). Spam is also used as the vehicle for the delivery of other online threats such as spyware, phishing and malware.
What is the intent of the new law?
The intent of the new law is to deter the most damaging and deceptive forms of spam from occurring in Canada.
Spam includes more than unsolicited commercial messages. It has become the vehicle for a wide range of threats to online commerce affecting individuals, businesses, and network providers. It can lead to the theft of personal data to rob bank and credit card accounts (identity theft); online fraud luring individuals to counterfeit websites (phishing); the collection of personal information through illicit access to computer systems (spyware); and false or misleading representations in the online marketplace.
Businesses are victimized by the counterfeiting of business websites to defraud individuals and businesses (spoofing). Network providers—recognizing that spam represents 75 to 90 percent of all email traffic—are forced to invest ever-increasing resources to prevent spam from entering their networks. Once established, spam slows networks down, and spam-borne viruses and other malicious software (malware) are used to operate networks of “zombie” computers (botnets) without their owners’ knowledge. These network attacks threaten the stability of the Internet and online services.
What do you mean by “related online threats”?
Spam has become the primary vehicle for the delivery of online threats, such as spyware, malware, and phishing. Spyware is software that collects information about a user and/or modifies the operation of a user’s computer without the user’s knowledge or consent. Malware is a general term for all forms of harmful and malicious content, especially hostile software such as viruses, worms, and Trojan horses. Phishing involves impersonating a trusted person or organization in order to steal someone’s personal information, generally for the purpose of identity theft.
Collectively, these online threats disrupt online commerce and reduce business and consumer confidence in the online marketplace; congest networks, imposing heavy costs on network operators and users, and threatening network reliability and security; and undermine personal privacy.
How big of a problem is spam in Canada?
Spam and related online threats, such as spyware and phishing, have increasingly become the primary vehicles for conducting criminal and predatory behaviour online. According to the Cisco 2008 Annual Security Report, Canada was ranked fourth on the Spam by Originating Country list for 2008.
What can individuals and businesses do to protect themselves against spam and related online threats?
Education and awareness are key to ensuring that individuals and businesses are taking the right steps in proactively combating spam. Network security programs, spam filters, and anti-virus software are also helpful in this regard.
To serve Canadians, this law will provide for a national coordinating body, which will synchronize public education and awareness, track and analyze statistics and trends, and lead policy oversight and coordination.
This initiative will also facilitate the setting up of a non-government agency, a Spam Reporting Centre, which will receive reports of spam and related threats, allowing it to collect evidence and gather intelligence to assist the three reporting agencies (the Canadian Radio-television and Telecommunications Commission, the Competition Bureau and the Office of the Privacy Commissioner) with the investigation and prosecution of offences.
How long will it take before Canadians can expect to see a real difference in the amount of spam received?
Based on the experience of other countries with similar legislation, noticeable results are expected to occur quickly. The year after Australia passed similar legislation in 2004, it dropped out of the world’s top 10 spam originating countries.
Will the new law eliminate spam in Canada? If not, by how much will it be reduced?
While it is not expected that the new law will eliminate spam altogether, business and consumers will see a reduction in the amount of spam received. The intent of the law is to deter the most damaging and deceptive forms of spam from occurring in Canada and help drive spammers out of Canada.
Has anti-spam law been effective in other countries?
Several of Canada’s global partners, such as Australia, the United Kingdom and the United States, have passed strong domestic laws to combat spam and related online threats.
After the Australian Spam Act came into effect, the proportion of global spam originating from Australia was greatly reduced. Some major spammers, particularly pornographic spammers, closed their Australian operations altogether.
I’m a legitimate business owner who uses bulk email to reach my customers. How will I be affected by these new anti-spam measures?
Legitimate businesses that use email to market their products to Canadians should not be negatively impacted by this law. The regime to allow for email marketing is based on a consumer opt-inapproach, which stipulates that businesses must get consent prior to sending a commercial email or have a pre-existing business relationship with a consumer.
What about text messages or “cellphone spam”? Is it covered?
Yes. With the new law’s technology-neutral approach, all forms of commercial electronic messages can be treated the same way. That means that unsolicited text messages, or cellphone spam, is addressed.
What if I buy email lists? How will I be affected by these measures?
The law does not prohibit the legitimate collection and compiling of lists of email addresses, provided the activity follows the rules regarding consent and other principles that apply within federal and provincial privacy laws. Federal privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), sets out the rules for collection, use and disclosure of such personal information and these continue to apply under the new act.
Are there exceptions, such as the Do Not Call list for political parties and charities?
Canada’s anti-spam legislation (CASL) does not apply to non-commercial activity. Political parties and charities that engage Canadians through email are not subject to CASL if these communications do not involve selling or promoting a product.
There are also further exemptions for situations where such organizations engage in commercial activities with people who have made a donation or gift in the last 18 months, volunteered or performed volunteer work in the last 18 months, or were a member of the organization in the last 18 months. These exceptions apply to registered charities, political parties and candidates in federal, provincial, territorial or municipal elections.