Frequently asked questions about Canada’s anti-spam legislation

Q1. What is the Competition Bureau's role with respect to Canada's anti-spam law?

The Competition Bureau will investigate and take action where appropriate against false or misleading representations and deceptive marketing practices in the electronic marketplace. The Competition Bureau, as an independent law enforcement agency, ensures that Canadian businesses and consumers prosper in a competitive and innovative marketplace.

Q2. What changes have been made to the Competition Act?

The new law amends the Competition Act in two key areas.

First, new provisions have been added and others modified so that the Bureau can more effectively address false or misleading representations and deceptive marketing practices in the electronic marketplace, including false or misleading sender or subject matter information, electronic messages, and locator information such as URLs and metadata. Metadata means the background information that provides further details about one or more aspects of the data, including means of creation of the data, purpose of the data, time and date of creation and the creator or author of the data. For example, in the case of an email, its metadata could identify who wrote it, where and when.

Second, it includes technology-neutral language that catches emerging technologies. This will assist the Bureau in enforcing provisions in the Competition Act as technological threats evolve.

Technology-neutral implies that all means of telecommunications are captured under the new law, including Short Message Services (SMS or text messaging), social media, websites, uniform resource locators (URL) and other locators, applications, blogs, and Voice over Internet Protocol (VoIP).

For further details, see The Competition Bureau and CASL.

Q3. Does CASL apply to social media?

Yes. While certain provisions apply only to electronic messages, Canada's anti-spam law takes a technology-neutral approach, so that all means of telecommunications are captured under the new law, including social media.

It should be noted that all methods of making representations, including printed or broadcast advertisements, written or oral representations, audio-visual promotions and illustrations, as well as representations made electronically, are within the general scope of the Competition Act.

Q4. Does the law apply to promotional emails, text messages, instant messages or posts on social media?

Yes. While certain provisions apply only to electronic messages, Canada's anti-spam law takes a technology-neutral approach, so that all means of telecommunications are captured under the new law, including emails, text messages, instant messages, posts on social media, etc.

It should be noted that all methods of making representations, including printed or broadcast advertisements, written or oral representations, audio-visual promotions and illustrations, as well as representations made electronically, are within the general scope of the Competition Act.

Q5. Does Canada’s anti-spam law deal only with spam?

No. The law targets various types of violations including:

  • The sending of commercial electronic messages without express or implied consent (e.g., spam);
  • The installation of computer programs on another person's computer system without express consent (e.g., malware, spyware);
  • False or misleading electronic representations used to promote a product, service or business interest; and
  • The unauthorized collection of electronic addresses and the collection of personal information by accessing a computer system in contravention of an Act of Parliament (e.g., address harvesting).

Canada's anti-spam law takes a technology-neutral approach, so that all means of telecommunications are captured under the new law, including Short Message Services (SMS or text messaging), social media, websites, uniform resource locators (URL) and other locators, applications, blogs, and Voice over Internet Protocol (VoIP).

Q6. I’m a not-for-profit organization; does CASL apply to me?

Yes. CASL makes amendments to several statutes including the Competition Act. In general, the false or misleading representations and deceptive marketing practices provisions of the Competition Act apply to anyone promoting, directly or indirectly, the supply or use of a product or service, or any business interest, by any means, including by charities and other not-for-profit organizations. Generally, this does not include advertisements or representations made solely for a political or charitable purpose, but does include the raising of funds for charitable or other non-profit purposes.

There is a limited exemption for section 6 of CASL that is enforced by the CRTC; see www.crtc.gc.ca/eng/com500/faq500.htm.

Q7. I’m a registered charity; does CASL apply to me?

Yes. CASL makes amendments to several statutes including the Competition Act. In general, the false or misleading representations and deceptive marketing practices provisions of the Competition Act apply to anyone promoting, directly or indirectly, the supply or use of a product or service, or any business interest, by any means, including by charities and other not-for-profit organizations. Generally, this does not include advertisements or representations made solely for a political or charitable purpose, but does include the raising of funds for charitable or other non-profit purposes.

There is a limited exemption for section 6 of CASL that is enforced by the CRTC; see www.crtc.gc.ca/eng/com500/faq500.htm.

Q8. How is “commercial activity” in CASL different than “business interest” in the Competition Act?

Under CASL, "commercial activity" means any particular transaction, act or conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit. “Commercial activity” does not apply to any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.

Under the Competition Act, "business" includes the business of:

  1. manufacturing, producing, transporting, acquiring, supplying, storing and otherwise dealing in articles, and
  2. acquiring, supplying and otherwise dealing in services.
    • It also includes the raising of funds for charitable or other non-profit purposes.

Therefore, even if an individual or organization is exempt from CASL, its conduct may still be subject to the Competition Act.

Q9. What are the consequences for violating Canada’s anti-spam legislation?

All Competition Act provisions introduced or amended as a result of CASL are currently in force; there are no transitional provisions.

The Competition Act provides two regimes to address false or misleading representations and deceptive marketing practices.

Under the criminal regime, certain practices are brought before the criminal courts, requiring proof of each element of the offence beyond a reasonable doubt. On summary conviction, considered to be less serious than indictable offences, the person is liable to a fine of up to $200,000 and/or imprisonment for up to one year. If convicted on indictment, the person is liable to a fine at the discretion of the court and/or imprisonment for up to 14 years.

Under the civil regime, certain practices may be brought before the Competition Tribunal, the Federal Court or the superior court of a province and require that each element of the conduct be proven on a balance of probabilities. The court may order a person to cease the activity, publish a notice and/or pay an administrative monetary penalty. On first occurrence, individuals are liable to penalties of up to $750,000 and corporations are liable to penalties of up to $10,000,000. For subsequent occurrences, the penalties increase to a maximum of $1,000,000 for individuals and $15,000,000 for corporations. In certain situations, the court may also make an order for restitution, requiring the person to compensate consumers who bought such products, and an interim injunction to freeze assets in certain cases.

For information related to provisions of CASL not enforced by the Competition Bureau, see www.crtc.gc.ca and www.priv.gc.ca.

Q10. Can directors and officers be liable too?

Yes, directors, officers, and agents of a corporation can be liable, if they directed, authorized, assented to, acquiesced in, or participated in the commission of the violation.

Q11. How do I report spam and/or false or misleading electronic representations?

Spam and related violations can be reported to the enforcement agencies through the Spam Reporting Centre at www.fightspam.gc.ca.

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