CHAPTER 10 E-Commerce, Data Protection and Privacy
Advertising on the Internet is subject to the provisions of the Competition Act , which imposes a dual criminal and civil adjudicative regime (see the Competition Law chapter of this guide). In addition, other statutes, such as the Food and Drugs Act , provincial consumer protection legislation and, in Québec, the Charter of the French Language , provide specific restrictions on the content and style of advertisements relating to certain classes or types of products. For example, under the Charter of the French Language , advertisements for products available in Québec that are posted on the website of a company having an address or a physical establishment in Québec must be available in French. However, advertisements for products such as cultural or educational material (e.g., books, CDs) may be exclusively in a language other than French, provided that the products themselves are in that other language. Canada’s anti-spam law (known as CASL) is designed to be one of the strictest anti-spam laws in the world, in order to protect consumers and businesses from dangerous forms of spam. Spam, which is the word used to refer to unsolicited commercial email, has been estimated as constituting more than 80% of all email worldwide. A drain on both business and personal productivity, spam is considered a threat to consumer confidence in the e-commerce marketplace. CASL is not limited to counteracting spam; it also regulates activities that are perceived to discourage the misuse of electronic means of carrying out commercial activities,
such as downloading malicious computer programs and the harvesting of email addresses. CASL contains provisions that prohibit the sending of commercial electronic messages (including email, text messages, instant messages and other electronic messages sent with a commercial purpose) without the prior consent of the intended recipient. It also prohibits the unauthorized installation of computer programs on another’s computer system (spyware and malware), the altering of transmission data in an electronic message (message routing) and other activities that could have an impact on electronic commerce. CASL is aimed at punishing senders of electronic messages and perpetrators of activities originating in Canada or affecting Canadian residents that involve identity theft, phishing, pharming, spyware and other forms of fraud or misleading consumers. CASL applies to the sender, whether or not located in Canada, so long as a computer system in Canada is used to send or access the electronic message in question. However, Canadian organizations that send commercial electronic messages to persons located in foreign countries do not have to comply with the anti-spam provisions of CASL if the messages are sent in compliance with laws of the foreign country that are substantially similar to CASL. CASL generally requires express opt-in consent (in contrast to PIPEDA, discussed below, under which opt- out consent and implied consent can be permissible in Canada’s anti-spam law (known as CASL) is designed to be one of the strictest anti-spam laws in the world, in order to protect consumers and businesses from dangerous forms of spam.
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