electronic messages
51 that are sent by organizations in the course of “commercial
activity”. A commercial electronic message is defined in these terms:
(2) For the purposes of this Act, a commercial electronic message is an electronic message
that, having regard to the content of the message, the hyperlinks in the message to content on
a website or other database, or the contact information contained in the message, it would be
reasonable to conclude has as its purpose, or one of its purposes, to encourage participation
in a commercial activity [. . .]
The CASL prohibits the sending of unsolicited commercial electronic messages
with the consent of the recipient, although consent may be express or implied.
52 In
general, express consent requires that individuals be provided with certain information prior to agreeing (orally or through written electronic means). In some cases,
express consent may be determined by the conduct of the individual.
53 Consent may
only be implied in the circumstances set out in the legislation.
54 These include
situations where there is a pre-existing commercial relationship between the parties,
or where the person to whom the communication is sent “has conspicuously
published, or has caused to be conspicuously published, the electronic address to
which the message is sent, the publication is not accompanied by a statement that the
person does not wish to receive unsolicited commercial electronic messages at the
electronic address and the message is relevant to the person’s business, role,
functions or duties in a business or official capacity”.
55 The legislation establishes
a Spam Reporting Centre for individuals to report cases of unsolicited commercial
messages. The Canadian Radio-Television Commission, the Competition Bureau
and/or the Office of the Privacy Commissioner of Canada are empowered to
investigate in appropriate circumstances.
The CASL provides for administrative monetary penalties.
56 Sections 47–51 of
the CASL also establish a private right of action for breaches of the CASL. The
coming into effect of the right was initially scheduled for July 1, 2017, but it has been
indefinitely postponed.
2.4 Employee Personal Information
Employee personal information is treated somewhat differently from other personal
information under Canada’s private sector data protection laws. PIPEDA applies to
51 An electronic message is defined as: “a message sent by any means of telecommunication,
including a text, sound, voice or image message” CASL, s. 1(1).
52 CASL, s. 6(1).
53 CASL, s. 10(8).
54 CASL, s. 10(9).
55 CASL, s. 10(9)(b).
56 CASL, s. 20(1). Penalties for an individual are set at a maximum of $1,000,000 CAD. For an
organization, the maximum is $10,000,000 CAD.
Data Protection and the Internet: Canada
63
51 that are sent by organizations in the course of “commercial
activity”. A commercial electronic message is defined in these terms:
(2) For the purposes of this Act, a commercial electronic message is an electronic message
that, having regard to the content of the message, the hyperlinks in the message to content on
a website or other database, or the contact information contained in the message, it would be
reasonable to conclude has as its purpose, or one of its purposes, to encourage participation
in a commercial activity [. . .]
The CASL prohibits the sending of unsolicited commercial electronic messages
with the consent of the recipient, although consent may be express or implied.
52 In
general, express consent requires that individuals be provided with certain information prior to agreeing (orally or through written electronic means). In some cases,
express consent may be determined by the conduct of the individual.
53 Consent may
only be implied in the circumstances set out in the legislation.
54 These include
situations where there is a pre-existing commercial relationship between the parties,
or where the person to whom the communication is sent “has conspicuously
published, or has caused to be conspicuously published, the electronic address to
which the message is sent, the publication is not accompanied by a statement that the
person does not wish to receive unsolicited commercial electronic messages at the
electronic address and the message is relevant to the person’s business, role,
functions or duties in a business or official capacity”.
55 The legislation establishes
a Spam Reporting Centre for individuals to report cases of unsolicited commercial
messages. The Canadian Radio-Television Commission, the Competition Bureau
and/or the Office of the Privacy Commissioner of Canada are empowered to
investigate in appropriate circumstances.
The CASL provides for administrative monetary penalties.
56 Sections 47–51 of
the CASL also establish a private right of action for breaches of the CASL. The
coming into effect of the right was initially scheduled for July 1, 2017, but it has been
indefinitely postponed.
2.4 Employee Personal Information
Employee personal information is treated somewhat differently from other personal
information under Canada’s private sector data protection laws. PIPEDA applies to
51 An electronic message is defined as: “a message sent by any means of telecommunication,
including a text, sound, voice or image message” CASL, s. 1(1).
52 CASL, s. 6(1).
53 CASL, s. 10(8).
54 CASL, s. 10(9).
55 CASL, s. 10(9)(b).
56 CASL, s. 20(1). Penalties for an individual are set at a maximum of $1,000,000 CAD. For an
organization, the maximum is $10,000,000 CAD.
Data Protection and the Internet: Canada
63