Installation of Computer Programs

The installation of computer programs on the devices of others is governed by Canada’s Anti-Spam Legislation (CASL). CASL generally prohibits the installation of a computer program (software) on another person’s computing device (e.g., laptop, smartphone, desktop, gaming console or other connected device) in the course of commercial activity without the express consent of the device owner or an authorized user (e.g., other family member or employee), subject to certain limited exceptions. These provisions may be relevant to marketers to the extent that marketing activities include the development and distribution of mobile apps and other computer programs that may be used for promotional purposes.

For example, under CASL, it is prohibited for a website to automatically install software on a visitor’s computer without getting consent, or for software to be updated without first obtaining consent.

CASL does not apply to programs or apps owners or authorized users download themselves to install on their own computer or device, or updates they install for those programs, provided that the disclosures made to the owner/user prior to download and installation disclose the program’s material functionality.

 

CASL requires an enhanced level of disclosure and consent for programs that include functionality beyond the reasonable expectations of the owner/user, such as:

  • collecting personal information stored on the device;
  • interfering with the owner’s or user’s control of the device;
  • changing or interfering with user settings, preferences or commands, without the knowledge of the owner/user;
  • changing or interfering with data stored on the device in a matter that obstructs, interrupts or interferes with access to or use of that data by the owner/user;
  • causing the device to communicate with another device or system without authorization of the owner/user; and
  • installing a computer program that may be activated by a third party without the knowledge of the owner/user.