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How Canada combats spam!

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Recently, in an article on this website, the USA’s 2003 CAN-SPAM law that helped regulate spam was mentioned (Sending and Posting Advertisement in Mass, translated into Portuguese as ““Enviar e Postar Publicidade em Massa,” or Stupid Pointless Annoying Messages, which translates into Portuguese as “Mensagens Perturbadoras, Estúpidas e Sem Noção”).

To address this troublesome practice, Canada approved CASL - Canada's Anti-Spam Legislation on July 1, 2014, which only came into force on July 1, 2017 and became an important regulatory framework to tackle the dissemination of spam.

In its simplest definition the term spam refers to unsolicited email, although it can also include software and unsolicited text messages. However, the legal definition of spam also covers:

a. the unauthorized change of transmission data;
b. the installation of computer programs without consent;
c. false or misleading electronic representations (including websites);
d. address collection (collection and / or use of e-mail or other electronic addresses without permission);
e. collecting personal information by illegally accessing a computer system or electronic device.

CASL's primary focus is commercial electronic messages, which are those that encourage participation in a commercial activity with or without expectation of profit. However, unlike the USA’s CAN-SPAM, which focuses only on commercial electronic messages (CEMs), defined as any commercial email with a “main purpose” of commercial advertisement or promotion of a product or service, which is not related to a transaction or business relationship, the Canadian CASL also focuses on commercial electronic messages but encompasses any means of telecommunication, including a text, sound, voice or image message, reaching SMS and social media.

Nevertheless, CASL's enforcement, taking CAN-SPAM as a paradigm, consolidates itself in the need for the recipient to opt-in, that is, the need for prior consent from the recipient, before an email is sent.  Whereas CAN-SPAM allows the sender to opt-out only, that is, the recipient's right to request their exclusion from the sender's email list, after already receiving the email. In addition, while the mechanism for exercising the right of exclusion by CAN-SPAM must remain active for at least thirty (30) days, this period is at least sixty (60) days in CASL.

As for the content of the messages, CAN-SPAM requires the inclusion of a valid physical postal address for the sender, whereas CASL requires the disclosure of the mailing address and a telephone number with voicemail response or an e-mail or a web address.

An interesting feature of CASL is that one of the exceptions to compliance with the consent requirements is if there is an existing business relationship between the parties, arising from any of the following activities occurring within a two-year period immediately before the day on which the message was sent:

a. the purchase or rental of a product, good, service, land or an interest or right to land by the person to whom the message is sent;
b. the acceptance by the person to whom the message is sent, of a business, investment or game opportunity offered by the sender;
c. the exchange of anything mentioned in item “a” above between the person to whom the message is sent and the sender;
d. a written contract between the person to whom the message is sent and the sender in relation to a matter not referred to in any of items “a” to “c”, if the contract is existing or expires within two years;
e. a query or request, within the six-month period immediately before the day the message was sent, made by the person to whom the message is sent and directed to the sender, with respect to any things mentioned in items “a” to “c” above.

However, the enforcement and corresponding penalties shows the strength of CASL, if we compare it again with CAN-SPAM. CAM-SPAM establishes administrative, civil sanctions (with penalties ranging from US$ 1 to 2 million, which can only be claimed by a state attorney or internet service provider; and criminal (up to 5 years imprisonment), which can only be investigated and claimed by the US justice department. CASL, on the other hand, establishes a maximum penalty of Can$ 1 million for violation, in the case of an individual, and Can$ 10 million for violation, in the case of anyone else, it is important to note that any individual or legal entity can claim such a penalty in case of violation.

CASL demonstrated its strength when it came into force in 2017:

a. While in 2014, the year the law was passed, Canada had 7 of the 100 largest spam organizations in the world, in 2017, only 2 remained.
b. A study also demonstrated that 1 year after the introduction of this legislation, there was a 37% reduction in spam circulating in the country.
c. CASL also allowed Canada to actively share information and cooperate in global enforcement actions. Canada now has international agreements with 4 countries and memoranda of understanding with 12 agencies in 8 countries.
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