Regulatory Structure
The delivery of digital advertising in Canada is primarily regulated by Canadian private sector privacy legislation and anti-spam legislation.
Canadian Privacy Legislation:
- There are four private sector privacy statutes in Canada: the Federal Personal Information Protection Electronic Documents Act, Alberta’s Personal Information Protection Act, British Columbia’s Personal Information Protection Act and Quebec’s Act respecting the protection of personal information in the private sector. Each statute sets out a regime for protection of personal information, although they vary in scope, substantive requirements and remedy and enforcement provisions.
- The Office of the Privacy Commissioner of Canada (OPC) has released guidance on online behavioural advertising (OBA) that sets out requirements for organizations relying on implied consent to conduct OBA. The OPC recently announced that they would be conducting research into OBA practices in Canada to confirm compliance with the guidance.
Self-Regulatory Program for OBA:
- The Digital Advertising Alliance of Canada (DAAC) has launched a self-regulatory program for OBA to assist companies with their compliance obligations under Canadian privacy legislation. The DAAC program is based on the Digital Advertising Alliance’s program in the US.
Canada’s Anti-Spam Legislation:
- Canada’s anti-spam legislation (commonly referred to as CASL) sets out, among other things, strict consent, notice and unsubscribe requirements for the sending of “commercial electronic messages”.
- CASL also prohibits the installation of a computer program on any other person’s computer system without express consent. CASL refers to cookies as computer programs and provides for deemed consent to install cookies where “the person’s conduct is such that it is reasonable to believe that they consent to the program’s installation”.
- CASL permits the regulator to impose administrative monetary penalties of up to $1 million per violation for individuals and $10 million for businesses. CASL also sets forth a private right of action permitting individuals to bring a civil action for alleged violations of the commercial electronic message provisions of CASL with damages of up to $200 per violation (i.e. per email sent), not exceeding $1,000,000 for each day on which a contravention occurred, or for alleged violations of the computer program provisions of CASL with damages of up to $1,000,000 for each day on which the contravention occurred.
In addition to the above, the content of advertising is governed by various statutes in Canada, such as the Federal Competition Act and provincial consumer protection statutes, that generally prohibit false and misleading representations made to the public. Advertising industry self-regulatory codes and industry-specific regulation (e.g. alcoholic beverages, automotive sales etc.) sometimes provide specific additional requirements. The Province of Quebec has province-specific language requirements and a general prohibition on advertising to children under 12.