Posts Tagged ‘Canada’


Get Thee to a Lawyer: What You Need to Know About Canada’s New Anti-Spam Law

Monday, January 27th, 2014
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Last week, Software and Information Industry Association (SIIA) held a webinar about Canada’s new anti-spam law. I attended the webinar, which was led by copyright and intellectual lawyer Barry Sookman.

Here’s the first thing you need to know: I am not a lawyer. The law is intricate, confounding, and complex, and this blog post should in no way be construed as legal advice. If you have any questions, consult a lawyer.

Canada’s Anti-Spam Legislation (CASL) becomes effective as of July 1, 2014. Sookman says it is a four-part legislation:

  • Anti-Spam: Deals with more than just “spam” as we think of it. The law will apply to the transmission of commercial electronic messages, whether it’s “spam” or not.
  • Spyware and malware: The legislation has been drafted in very broad terms to prohibit installation of any computer program, whether it’s malware or benign software.
  • Amendment to a national privacy law that prohibits address and personal information harvesting. This includes automated programs that collect email addresses.
  • Amendment to the competition act: An anti-trust act regarding false or misleading misrepresentation that has now been augmented with provisions making it illegal for emails to include misrepresentations. The definitions are very broad, and even extend to URLs included in an email and the subject line

Here’s the other top thing you need to know: If your organization sends any electronic messages to Canadian citizens, your organization can be found liable, whether you are based in or out of Canada. If your organization is headquartered outside Canada but has affiliate offices in Canada, those affiliate offices, and any messages you send to them, fall under the scope of CASL.

It’s worth noting that the business community in Canada wanted much more time to implement compliance, as the July 1 deadline may not give enough time for many to comply, since developing a compliance program means considering a number of pieces of legislation and regulatory laws.

Not complying can bring hefty penalties: Sookman warns that after a hearing, the Canadian Radio-television Telecommunications Commission (CRTC) can impose a monetary penalty of up to $10 million, and a private right of action can cost offending companies $1 million per day for breach of spam and malware provisions.

As I said before, the law is opaque and contradictory, so I’m not going to explain a lot of terminologies and provisions that Sookman explained. Instead, I’ll highlight a few very basic principles and once again encourage you to consult a lawyer.

  • Legislation dictates that organizations cannot send electronic messages unless the recipient has consented (there’s a lot of confusion behind express and implied consent, which is best explained by a lawyer). There must be a specific, prescribed unsubscribe option. This includes not just messages to email, but also to instant message and texts.
  • There are certain exceptions if your organization has an existing business relationship with the recipient, but when it comes to implied or express consent, there are many contradictory indications of when each applies.
  • The spyware/malware provisions deal with any computer programs. Sookman says that organizations need to be concerned about these provisions, as the requirements are not consistent with current business practices.
  • There is a general prohibition against a business installing programs on a computer system. If your organization has specific software clients need to run, this applies. You must acquire consent and change your websites, agreements, permissions, and download processes.

CASL makes the U.S.’s requirements look like an easy hurdle; it goes far beyond the scope of the U.S.’s CAN-SPAM Act, which includes requiring senders to tell recipients how to opt out of future emails and honoring those opt-out requests promptly. It’s likely that opt-outs will have far more prescriptions and specifications that those laid out by CAN-SPAM.

Sookman recommends that organizations begin with the following:

  • Ensuring the due diligence defense applies to them. This means that your organization takes all reasonable steps to develop a compliance program that applies even at board level, and that the organization has a policy to ensure regular updates and policy implementation. Sookman says that following guidelines may should like a reasonable way to follow due diligence, but a misunderstanding of the law will not help you establish a due diligence defense.
  • Conduct a review or survey of each department to identify current communications or software installation practices, methods of obtaining consent, and unsubscribe techniques.
  • Develop a plan to address gaps, establish procedures to ensure ongoing compliance and institutional monitoring of CASL activities
  • Start obtaining express consent ASAP
  • Check out the McCarthy Tetrault toolkit
  • Consult a lawyer

In short, CASL applies to a lot more organizations that I thought it would. There’s a good chance CASL applies to your organization. With less than six months until go-time, consult a lawyer and get moving.

Even if your organization has no affiliation with Canada, SIIA still provided access to a great lesson: we still have to pay attention, because it’s possible that if CASL is effective, the U.S. and other countries could follow suit and tighten regulations. Has your organization taken steps to comply with CASL? Do you think similar regulations could take hold in other countries should CASL prove effective?

Once And For All, Are Newspapers Really Dying?

Wednesday, August 3rd, 2011

iStock_000016554022XSmallThe topic of newspapers, and of traditional media, “dying,” has come up in my blog posts before here and, more recently, here.  It’s difficult for me not to let out an audible groan when this topic creeps up once again across blogs and forums. Let’s consider these facts:

  • There was a newspaper boon in the 1890s, when the number exceeded 13,000 — about the same number as now – according to a recent Stanford University presentation.
  • Concluding a year-long study, U.S. newspapers are transforming, not going out of business, says Paul Steinle, a just-retired journalism professor and academic provost who ran United Press International from 1988-1990.
  • Some of the best newspapers in America – of all sizes – are now reporting profit margins averaging 10 percent to 15 percent a year despite devastating drops in advertising revenue over the last five years, according to Paul Steinle and his co-researcher, wife Dr. Sara Brown.
  • The Newton Daily News reported last month that their content “reaches more people today than at any point in its entire history.”
  • Recently retired Lexington Herald-Leader publisher Tim Kelly wrote that“there are 122 non-daily newspapers in Kentucky right now, only one fewer than 15 years ago. Not exactly a rush to extinction.”
  • Last month, Jason Schaumburg, editor of the Daily Chronicle reported, as reported to the Audit Bureau of Circulations, the papers overall circulation grew about 8 percent over last year –and online page views have increased 35 percent since 2008.
  • Released just last week, a comScore study for the Newspaper Association of America (NAA) showed newspaper websites posted the second consecutive quarterly traffic increase. NAA President and CEO John Sturm explains, “The credibility associated with newspapers and strong newspaper brands clearly carries over to the online environment — distinguishing newspaper sites from other sources.”

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