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Electronic marketing and internet use

Electronic marketing

Are there rules specifically governing unsolicited electronic marketing (spam)?

Canada’s Anti-Spam Legislation (CASL) generally prohibits the sending of commercial electronic messages (essentially, marketing and promotional messages) without prior explicit consent, subject to a number of exceptions. The law applies not just to mass messaging, but also to individually targeted messages, including messages sent to businesses as well as to individuals. CASL also imposes ‘form’ requirements on requests for consent, as well as on marketing and promotional messages themselves, including the requirement that such messages include an easy-to-use unsubscribe mechanism. Penalties for non-compliance can be substantial – up to C$10 million for organisations. The law also contains a private right of action, which is not yet in force.

Cookies

Are there rules governing the use of cookies?

While there are no cookie-specific laws or restrictions, existing privacy laws have been interpreted to apply to the use of cookies. Generally, cookies that are tied to a user’s IP address, device ID or other persistent identifiers will be considered to constitute personal information. Accordingly, the setting and use of cookies require consent, in line with the general requirement in Canadian private sector privacy laws for knowledge and consent to any collection, use or disclosure of personal information. While generally requiring prior express consent for the installation of computer programs on another’s computer system, CASL explicitly excludes the installation of cookies from this requirement, deeming consent to the installation of cookies in all circumstances in which the person’s conduct indicates such consent. Examples in which consent would not generally be implied in this way include situations in which a website attempts to override the consumer’s disabling of cookies or Javascript in their browser.

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