An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23)

Marginal note:Contravention of sections 6 to 8

9 It is prohibited to aid, induce, procure or cause to be procured the doing of any act contrary to any of sections 6 to 8.

Marginal note:Express consent — sections 6 to 8

• 10 (1) A person who seeks express consent for the doing of an act described in any of sections 6 to 8 must, when requesting consent, set out clearly and simply the following information:

  • (a) the purpose or purposes for which the consent is being sought;

  • (b) prescribed information that identifies the person seeking consent and, if the person is seeking consent on behalf of another person, prescribed information that identifies that other person; and

  • (c) any other prescribed information.

• Marginal note:Exception

  (2) Despite paragraph (1)(b), for the purposes of section 6, if a person is seeking express consent on behalf of a person whose identity is not known,

  • (a) the only information that is required to be provided under that paragraph is prescribed information that identifies the person seeking consent; and

  • (b) the person seeking consent must comply with the regulations in respect of the use that may be made of the consent and the conditions on which the consent may be used.

• Marginal note:Additional requirement — section 8

  (3) A person who seeks express consent for the doing of any act described in section 8 must, when requesting consent, also, in addition to setting out any other prescribed information, clearly and simply describe, in general terms, the function and purpose of the computer program that is to be installed if the consent is given.

• Marginal note:Additional requirements associated with certain functions

  (4) In addition to the requirements set out in subsections (1) and (3), if the computer program that is to be installed performs one or more of the functions described in subsection (5), the person who seeks express consent must, when requesting consent, clearly and prominently, and separately and apart from the licence agreement,

  • (a) describe the program’s material elements that perform the function or functions, including the nature and purpose of those elements and their reasonably foreseeable impact on the operation of the computer system; and

  • (b) bring those elements to the attention of the person from whom consent is being sought in the prescribed manner.

• Marginal note:Description of functions

  (5) A function referred to in subsection (4) is any of the following functions that the person who seeks express consent knows and intends will cause the computer system to operate in a manner that is contrary to the reasonable expectations of the owner or an authorized user of the computer system:

  • (a) collecting personal information stored on the computer system;

  • (b) interfering with the owner’s or an authorized user’s control of the computer system;

  • (c) changing or interfering with settings, preferences or commands already installed or stored on the computer system without the knowledge of the owner or an authorized user of the computer system;

  • (d) changing or interfering with data that is stored on the computer system in a manner that obstructs, interrupts or interferes with lawful access to or use of that data by the owner or an authorized user of the computer system;

  • (e) causing the computer system to communicate with another computer system, or other device, without the authorization of the owner or an authorized user of the computer system;

  • (f) installing a computer program that may be activated by a third party without the knowledge of the owner or an authorized user of the computer system; and

  • (g) performing any other function specified in the regulations.

• Marginal note:Exception

  (6) Subsection (4) does not apply in respect of a computer program that performs a function described in subsection (5) if that function only collects, uses or communicates transmission data or performs an operation specified in the regulations.

• Marginal note:Updates and upgrades

  (7) Subsections (1) and (3) do not apply in respect of the installation of an update or upgrade to a computer program the installation or use of which was expressly consented to in accordance with subsections (1) and (3) if the person who gave the consent is entitled to receive the update or upgrade under the terms of the express consent and the update or upgrade is installed in accordance with those terms.

• Marginal note:Person considered to expressly consent

  (8) A person is considered to expressly consent to the installation of a computer program if

  • (a) the program is

    • (i) a cookie,

    • (ii) HTML code,

    • (iii) Java Scripts,

    • (iv) an operating system,

    • (v) any other program that is executable only through the use of another computer program whose installation or use the person has previously expressly consented to, or

    • (vi) any other program specified in the regulations; and

  • (b) the person’s conduct is such that it is reasonable to believe that they consent to the program’s installation.

• Marginal note:Implied consent — section 6

  (9) For the purpose of section 6, except subsection 6(7.1), consent is implied only if

  • (a) the person who sends the message, the person who causes it to be sent or the person who permits it to be sent has an existing business relationship or an existing non-business relationship with the person to whom it is sent;

  • (b) the person to whom the message 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;

  • (c) the person to whom the message is sent has disclosed, to the person who sends the message, the person who causes it to be sent or the person who permits it to be sent, the electronic address to which the message is sent without indicating a wish not 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; or

  • (d) the message is sent in the circumstances set out in the regulations.

• Marginal note:Definition of existing business relationship

  (10) In subsection (9), existing business relationship means a business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from

  • (a) the purchase or lease of a product, goods, a service, land or an interest or right in land, within the two-year period immediately before the day on which the message was sent, by the person to whom the message is sent from any of those other persons;

  • (b) the acceptance by the person to whom the message is sent, within the period referred to in paragraph (a), of a business, investment or gaming opportunity offered by any of those other persons;

  • (c) the bartering of anything mentioned in paragraph (a) between the person to whom the message is sent and any of those other persons within the period referred to in that paragraph;

  • (d) a written contract entered into between the person to whom the message is sent and any of those other persons in respect of a matter not referred to in any of paragraphs (a) to (c), if the contract is currently in existence or expired within the period referred to in paragraph (a); or

  • (e) an inquiry or application, within the six-month period immediately before the day on which the message was sent, made by the person to whom the message is sent to any of those other persons, in respect of anything mentioned in any of paragraphs (a) to (c).

• Marginal note:Clarification

  (11) For the purposes of subsection (10), the following organizations are considered to be businesses:

  • (a) a cooperative as defined in subsection 2(1) of the Canada Cooperatives Act;

  • (b) a cooperative corporation as defined in section 2 of the Cooperative Credit Associations Act; and

  • (c) any similar organization incorporated under an Act of Parliament or the legislature of a province.

• Marginal note:Clarification

  (12) If a person has an existing business relationship with another person in accordance with subsection (10), and the business is sold, the person who purchases the business is considered to have, in respect of that business, an existing business relationship with that other person.

• Marginal note:Definition of existing non-business relationship

  (13) In subsection (9), existing non-business relationship means a non-business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from

  • (a) a donation or gift made by the person to whom the message is sent to any of those other persons within the two-year period immediately before the day on which the message was sent, where that other person is a registered charity as defined in subsection 248(1) of the Income Tax Act, a political party or organization, or a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office;

  • (b) volunteer work performed by the person to whom the message is sent for any of those other persons, or attendance at a meeting organized by that other person, within the two-year period immediately before the day on which the message was sent, where that other person is a registered charity as defined in subsection 248(1) of the Income Tax Act, a political party or organization or a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office; or

  • (c) membership, as defined in the regulations, by the person to whom the message is sent, in any of those other persons, within the two-year period immediately before the day on which the message was sent, where that other person is a club, association or voluntary organization, as defined in the regulations.

• Marginal note:Clarification

  (14) Where a period is specified in subsection (10) or (13) in relation to the purchase or lease of a product, goods, a service, land or an interest or right in land, or in relation to a donation, gift or membership,

  • (a) in the case of a purchase, lease, donation or gift, if it involves an ongoing use or ongoing purchase under a subscription, account, loan or similar relationship, the period is considered to begin on the day that the subscription, account, loan or other relationship terminates; and

  • (b) in the case of a membership, the period is considered to begin on the day that the membership terminates.

Marginal note:Unsubscribe mechanism — section 6

• 11 (1) The unsubscribe mechanism referred to in paragraph 6(2)(c) must

  • (a) enable the person to whom the commercial electronic message is sent to indicate, at no cost to them, the wish to no longer receive any commercial electronic messages, or any specified class of such messages, from the person who sent the message or the person — if different — on whose behalf the message is sent, using

    • (i) the same electronic means by which the message was sent, or

    • (ii) if using those means is not practicable, any other electronic means that will enable the person to indicate the wish; and

  • (b) specify an electronic address, or link to a page on the World Wide Web that can be accessed through a web browser, to which the indication may be sent.

• Marginal note:Period of validity of contact information

  (2) The person who sends the commercial electronic message and the person — if different — on whose behalf it is sent must ensure that the electronic address or World Wide Web page referred to in paragraph (1)(b) is valid for a minimum of 60 days after the message has been sent.

• Marginal note:Additional requirement

  (3) The person who sent the commercial electronic message and the person — if different — on whose behalf the message was sent must ensure that effect is given to an indication sent in accordance with paragraph (1)(b) without delay, and in any event no later than 10 business days after the indication has been sent, without any further action being required on the part of the person who so indicated.

• Marginal note:Withdrawal of consent — section 7

  (4) A person who has the express consent of the sender or the person to whom a message is sent to do any act described in section 7 must

  • (a) for the period covered by the consent, ensure that the person who gave their consent is provided with an electronic address to which they may send notice of the withdrawal of their consent; and

  • (b) ensure that effect is given to a notice of withdrawal of consent sent in accordance with paragraph (a) without delay, but in any event no later than 10 business days after receiving it.

• Marginal note:Withdrawal of consent — section 8

  (5) A person who has the express consent of an owner or authorized user to do any act described in section 8 must

  • (a) for a period of one year after any computer program that performs one or more of the functions described in subsection 10(5) but not referred to in subsection 10(6) is installed under the consent, ensure that the person who gave their consent is provided with an electronic address to which they may, if they believe that the function, purpose or impact of the computer program installed under the consent was not accurately described when consent was requested, send a request to remove or disable that computer program; and

  • (b) if the consent was based on an inaccurate description of the material elements of the function or functions described in subsection 10(5), on receipt within that one-year period of a request to remove or disable that computer program, without cost to the person who gave consent, assist that person in removing or disabling the computer program as soon as feasible.

Marginal note:Contravention of section 6

• 12 (1) A person contravenes section 6 only if a computer system located in Canada is used to send or access the electronic message.

• Marginal note:Contravention of section 7

  (2) A person contravenes section 7 only if a computer system located in Canada is used to send, route or access the electronic message.

Marginal note:Burden of proof

13 A person who alleges that they have consent to do an act that would otherwise be prohibited under any of sections 6 to 8 has the onus of proving it.

Administrative Monetary Penalties

Designation

Marginal note:Designated persons

14 For the purposes of any of sections 15 to 46, the Commission may designate persons or classes of persons appointed under section 8 of the Canadian Radio-television and Telecommunications Commission Act to exercise powers in relation to any matter referred to in the designation.

Preservation Demand

Marginal note:Preservation demand

• 15 (1) A person who is designated for the purpose of this section may cause a demand to be served on a telecommunications service provider requiring it to preserve transmission data that is in, or comes into, its possession or control.

• Marginal note:Expiry and revocation

  (2) Subject to subsection (5), the demand expires 21 days after the day on which it is served unless, before its expiry, a notice extending the demand for an additional period of 21 days is served on the telecommunications service provider. A demand may not be extended more than once and a notice revoking the demand may be served on the telecommunications service provider at any time.

• Marginal note:Purpose of demand

  (3) A person who is designated for the purpose of this section may make or extend a demand only for the purpose of one or more of the following:

  • (a) verifying compliance with this Act;

  • (b) determining whether any of sections 6 to 9 has been contravened; and

  • (c) assisting an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.

• Marginal note:Conditions to prevent disclosure

  (4) The designated person causing a demand to be served may impose conditions in the demand to prevent the disclosure of some or all of its contents or its existence if they have reasonable grounds to believe that the disclosure would jeopardize the conduct of

  • (a) an investigation under this Act; or

  • (b) an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.

• Marginal note:Expiry and revocation of conditions

  (5) A condition imposed to prevent disclosure expires six months after the day on which the demand is served on the telecommunications service provider unless, before its expiry, a notice extending the condition for an additional period of six months is served on the telecommunications service provider. A condition may not be extended more than once and a notice revoking the condition may be served on the telecommunications service provider at any time.

• Marginal note:Preservation and destruction of transmission data

  (6) A telecommunications service provider that is served with a demand must

  • (a) subject to subsections 16(2) and (3), preserve the data until the demand expires or is revoked; and

  • (b) destroy the data that would not be retained in the normal course of business and any document that is prepared for the purpose of preserving data under this section as soon as the demand expires or is revoked, unless a notice requiring the production of a document based on that data has been served on it under section 17.