Currently, there are no laws that specifically address the problem of spam, spyware and other malware. However, privacy laws, consumer protection laws and criminal law may be applicable to spam, spyware and other malware.  These laws are discussed below.

Privacy Laws

According to both PIPA (BC) and PIPEDA, you cannot use an individual’s personal information without their consent to contact them for a commercial purpose.

If you receive an unsolicited commercial email, you can complain to the Privacy Commissioner.
Both laws require an organization to get an individual’s consent prior to collecting, using or disclosing her personal information, so spyware that does not get your consent before it operates on your computer system is in breach of those requirements. If your personal information has been collected, used or disclosed without your consent by an organization through the use of spyware you can complain to the Information and Privacy Commissioner of BC.

Consumer Protection Laws

Business Practices and Consumer Protection Act (BC)  

This Act makes it illegal for any person who supplies goods or services or who solicits, advertises or promotes the supply of goods or services to do anything which could deceive or mislead a consumer. A supplier who is an individual can be fined up to $10,000 or imprisoned for up to 12 months or both. Corporations can be fined up to $100,000. A judge has the power to increase the fine in some circumstances and also has the power to order a person or company that breaks the law to pay money to the deceived consumer as compensation, if the consumer is not otherwise suing for damages.

Competition Act 

Under the Competition Act, you can sue any company for making false or misleading representations for the purpose of promoting its business interests or its products. If you win the lawsuit, you could win a sum of money as damages. Section 52(1)(e) prohibits that type of business practice. Section 36 gives an individual the right to sue an organization for breaching s. 52(1).

You can also file a complaint with the Competition Bureau about the company, stating that it has made a false or misleading representation for the purpose of promoting its product or business interest. If you file a complaint, the Commissioner of Competition can investigate, and if he considers it appropriate, can go to court for an order requiring the company to stop. Fines may be ordered in some circumstances (Section 74.01(1).

Lawyer recommended 

Bringing these types of actions under these laws would be a fairly new type of claim. For that reason, and because of certain technical requirements in relation to time limits and proving your case to the standard that must be met in any civil action, it is recommended that you consult a lawyer as soon as you believe you have suffered damage from spyware and decide you might want to sue under either the Business Practices and Consumer Protection Act or the Competition Act.

Criminal Law

Criminal Code of Canada: Individuals cannot sue under the Criminal Code, nor can an individual charge another person with a crime. Instead, the police investigate and the Crown lawyer decides whether there is enough evidence to charge the person or company with a crime and proceed with a prosecution.

If the matter goes to trial, and if the accused is found guilty, he can be fined or imprisoned, depending on the sentence required by the Criminal Code. If a company is found guilty, it can be fined. Sometimes prosecutions can be resolved early if a defendant pleads guilty, or if it is stopped for other reasons. For example, a charge can be withdrawn by the Crown for lack of evidence, or stayed by a judge if she decides the accused’s constitutional rights would be violated if the trial continued.

Certain provisions of the Criminal Code could apply to spyware:

Mischief is the intentional interference in the use, enjoyment or operation of property or data; intentionally making property or data useless, ineffective or inoperable; obstructing, interrupting or interfering with the lawful use of or access to property or data; or destroying or altering data (Section 430 of the Criminal Code of Canada).

A person convicted of mischief can be liable to a fine or a prison term, depending on the value of the property or data tampered with.

Unauthorized use of a computer (Section 342.1(1) of the Criminal Code of Canada) occurs when a person fraudulently obtains, intercepts or uses a computer service with the intent to commit an offence; or uses, traffics in, or permits another person to have access to a computer password that would enable them to use a computer to commit an offence. A person convicted of unauthorized use of a computer is liable to a prison term of up to ten years.

It is also an offence to wilfully intercept a private communication. (Section 184 of the Criminal Code of Canada). Upon conviction a person is liable to a prison term of up to five years.

Other Resources

Online Threats: Cookies

Every time you access a website or obtain services online, the potential exists for the website or service provider to use “cookies” (a text file containing information that the website or online service provider can store on your computer, allowing it to do things like recognize you when you return to the site, track the pages you view and how long you view them and track your preferences)  to collect details about your location, your ISP (internet service provider), other websites you’ve visited, your interests and your computer’s technical details.

How Do You Stop Cookies?

Your computer will have functionalities to stop or disable cookies. Go into the Tools menu, click on Options, and click on the Privacy tab. You should be able to change your privacy settings on that tab.