On November 10, 2014, the Canadian Radio-television and Telecommunications Commission (“CTRC”) issued new guidance on the provisions of Canada's Anti-spam Legislation (“CASL”), with respect to installation of computer programs.

The CASL's provisions prohibit the installation of a computer program, or a program update, on a person's computing device (e.g., computer, mobile devices, tablet, gaming console or other connected device) in the course of commercial activitywithout obtaining the express consent of the device owner or an authorized user.

Pursuant to the CTRC's guidance, the CASL (and consequently the prior express requirement) does not apply to: (a) self-installed software (e.g. the express consent provision does not apply to application downloaded by consumers to their own devices); (b) offline installations; (c) where consent is deemed, i.e. it is reasonably based on the person’s conduct in which he consented to the installation (e.g. operating systems, a program for which consent was already provided, programs installed solely to correct a failure in the computer system (bug fixes), cookies, HTML, JavaScript, etc.).

Further, certain programs which include special functions, which would normally not be expected by the user (given the nature of the program), may requireenhanced consent (e.g. collecting personal information from the device, interference with the use's control of the device, changes or interference with user's settings preferences or command without the user's knowledge, changes or interference with data in a manner that will obstruct the user’s access to that data, etc).