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CASL compliance undertakings continue to mount

Another company that is well-known to consumers has agreed to enter into a compliance undertaking with the CRTC for alleged CASL violations.  Kellogg Canada Inc. has paid a monetary penalty of $60,000 and undertaken to enter into a compliance program to better address elements such as:

  • written CASL compliance policies and procedures;
  • training programs for employees;
  • tracking CASL complaints and resolution; and
  • monitoring and auditing mechanisms to assess compliance.

Notably, the compliance issues arose from messages that were sent: not only by Kellogg, but also by its third party service providers, and not long after CASL entered into force in July 2014.  This was a time when many companies were early on in the process of familiarizing themselves with the many CASL requirements, and implementing programs to make sure that databases, third party agencies (marketing companies and other service providers) and internal procedures were all in line.

The CRTC’s Notice regarding Kellogg’s 2014 compliance issues comes only a month after the CRTC issued its Enforcement Advisory to businesses and individuals on how to keep records of consent (see our recent blog post here), and less than a year before the Private Right of Action becomes available in Canada under CASL legislation, meaning that the CRTC will not be the only one taking businesses to task for CASL compliance.

CASL compliance undertakings continue to mount

Canada’s role in international botnet takedown

The Canadian Radio-television and Telecommunications Commission (CRTC) has served its first warrant under Canada’s Anti-Spam Law (CASL) to take down a Toronto-based command and control server.  The malware family Win32/Dorkbot had reportedly infected more than a million personal computers in 190 countries.

The CRTC has repeatedly stated that it is working together in close collaboration with other countries to address spam, malware and other “online threats”.  In this case, the CRTC collaborated with the FBI, Europol, Interpol, Microsoft, and the RCMP, among others.  The CRTC Chief Compliance and Enforcement Officer, Manon Bombardier, has said that “partnerships between domestic and international law enforcement agencies are key in the fight against transnational cyber threats”.  CASL expressly provides for sharing information among the Government of Canada, various Canadian enforcement agencies, and the government of a foreign state or international organization, for the purpose of administering and enforcing CASL’s anti-spam and malware provisions.

For more information on CASL’s application to malware, see CASL – Software, Apps and other Computer Programs.

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Canada’s role in international botnet takedown

Privacy law and anti-spam: Guidance from the Office of the Privacy Commissioner of Canada

Recent enforcement under Canada’s anti-spam legislation (CASL) by the Canadian Radio-Television and Telecommunications Commission (CRTC) is keeping the spotlight on this new legislation, which came into force just last year. While the CRTC is responsible for the bulk of enforcement under CASL, organizations should remember that CASL also brought in changes to Canada’s federal privacy law,  the Personal Information Protection and Electronic Documents Act (PIPEDA), which applies to the collection, use and disclosure of personal information (including individuals’ email addresses).

The federal Office of the Privacy Commissioner of Canada (OPC) is responsible for investigating violations related to the new provisions under PIPEDA that target the practice of address harvesting. Address harvesting generally involves collecting electronic addresses through the use of a computer program, such as through web scraping, spyware, or automatic generation.

The OPC recently issued a guide and tip sheet for organizations on pratical steps to take to avoid contravening the PIPEDA requirements, including:

1. Obtain consent: Organizations must ensure that individuals are informed clearly and accurately at the point of collection about how their email addresses will be used. Just because an email address is posted online, it cannot be assumed that the individuals at the addresses posted have provided consent to receive email marketing. It is also useful to remember that there is no exception for address harvesting of business email addresses; PIPEDA’s definition of personal information includes business addresses.

2. Due Diligence with Service Providers: If an organization buys a list of email addresses from a vendor or employs service providers to conduct email marketing on their behalf, they should take due diligence steps by asking key questions, such as:

  • How was consent obtained? Appropriate consent at the time of collection must be obtained to use email addresses. Ensure that email marketing service providers utilize a clear consent process. If buying or using a list from a list vendor, were the email addresses collected through web scraping or automatic generation?
  • How is the email address list kept up to date? Unless otherwise permitted under the law, individuals should be permitted to withdraw consent to the use of their personal information at any time, such as by unsubscribing from an email list, and this functionality should be made available. Organizations that use a purchased list of email addresses should ensure that any unsubscribe requests will be communicated to them so that the email can be removed from the list that they use.

3. Maintain written records: An organization should document all email marketing compliance measures, including due diligence steps taken when contracting with a list vendor or email marketing company. Ensure that the service agreements with these organizations expressly require compliance with CASL and applicable privacy laws.

Conclusion

Organizations are responsible for ensuring that all individuals that receive email marketing from them have provided appropriate consent for the collection and use of their address for marketing . The OPC will review reports to the Spam Reporting Centre to identify email harvesters and spyware collecting personal information without consent. Organizations should take steps to comply with PIPEDA to avoid being caught by an OPC investigation, which could lead to being named in the OPC’s reports of its findings and recommendations.

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Privacy law and anti-spam: Guidance from the Office of the Privacy Commissioner of Canada

Canada’s Anti-Spam Law (CASL) applies to Software January 15

Earlier this year we told you that Canada’s Anti-Spam Law (CASL) is not just for Canadians.

CASL is also not just about spam.  Effective January 15, 2015, CASL applies to the installation of “computer programs” – software, apps and other programs – on the computer or device of another person.  This affects software vendors, app developers, gaming and entertainment companies, and others that are in the business of providing software to businesses and individuals in Canada.

Like CASL’s spam provisions:

  • the software provisions apply where a Canadian is the recipient – in this case, the recipient of the software, app, or other program;
  • the regime is based on “express consent”, as defined by the legislation; and
  • significant administrative monetary penalties (maximum $10 million) can be levied for non-compliance.

Our overview presentation walks through CASL’s application to computer programs.

Other resources published by the Canadian Radio-television and Telecommunications Commission (CRTC):

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Canada’s Anti-Spam Law (CASL) applies to Software January 15

Canada’s Anti-Spam Law – not just for Canadians

Canada’s Anti-Spam Law (CASL) enters into force on Canada Day, July 1. It was passed in 2010 as a “made-in-Canada” solution to “drive spammers out of Canada“.

Are you outside Canada? It’s important to know that this law reaches beyond Canada’s borders. CASL is already affecting businesses in the United States, Europe and elsewhere as they change their communications practices to send emails and other “commercial electronic messages” into Canada.

As we described in our presentation Comparing CASL to CAN-SPAM, the new law applies to messages that are accessed by a computer system in Canada. That means that messages sent by a person, business or organization outside of Canada, to a person in Canada, are subject to the law.

CASL expressly provides for sharing information among the Government of Canada, the Canadian CASL enforcement agencies, and “the government of a foreign state” or international organization, for the purposes of administering CASL’s anti-spam (and other) provisions. The MOU among the Canadian CASL enforcement agencies (see also our earlier post) similarly references processes to share and disseminate information received from and provided to their foreign counterpart agencies.

In a speech yesterday, the Chair of the Canadian Radio-television and Telecommunications Commission, Jean-Pierre Blais, emphasized the CRTC’s cooperation with its international counterparts to combat unlawful telemarketers, hackers and spammers that “often operate outside our borders“. The Chairman specifically named “the Federal Trade Commission in the U.S., the Office of Communication (OFCOM) in the U.K., the Authority for Consumers and Markets in the Netherlands, the Australian Communications and Media Authority and others”, and noted that the CRTC has led or participated in many international networks on unlawful telecommunications.

Companies should also take note that a violation of CASL might also result in the CRTC exercising its so-called “name and shame” power, by posting the name of the offender and the violation on its online compliance and enforcement list. The CRTC has for years published notices of violation with respect to its “Do Not Call List”, and is expected to take a similar approach for CASL notices of violation as well.

Companies that are working on their CASL compliance programs should take note of the CRTC’s recently published Anti-Spam Compliance and Enforcement Guidelines. A very helpful summary by Tim Banks, with a link to the Guidelines, is available here.

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Canada’s Anti-Spam Law – not just for Canadians