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Intellectual Property, Information Technology

Microsoft risks running afoul of anti-spam legislation

An aggressive campaign by Microsoft which forces Windows users to install Windows 10 could trigger a class-action suit or serious action under Canada's Anti-Spam Legislation (CASL), says Toronto patent lawyer Aaron Edgar.

As of Jan. 15, 2015, CASL prohibits the installation of software on a computer without a user's consent. The legislation is targeted at malicious software but Microsoft's tactics with Windows 10 may also fall afoul of the legislation. 

Edgar tells he was shocked when his Windows 8 computer rebooted to install Windows 10 while he was using it without further prompting.

The push to upgrade was voluntary but it seems Microsoft has recently changed tactics, the Toronto Star reports, prompting a flood of complaints. In the past, clicking a X in the upper right hand corner of the Windows 10 installation prompt would dismiss or close the upgrade prompt. Microsoft revised the Windows 10 installation prompt to tell users that Windows 10 was scheduled to install but clicking X no longer had the same effect.

"This is a similar tactic that malicious software uses to trick users into installation," Edgar says.

Edgar notes CASL expressly prohibits any individual or company installing a program on a computer without the owner’s consent.

While there are exceptions to the consent requirement for operating systems and upgrades or updates, CASL requires "the person’s conduct is such that it is reasonable to believe that they consent to the program’s installation" when installing an operating system.

It is Edgar's opinion that when users attempted to dismiss the Windows 10 installation prompt by clicking the X, the user's conduct clearly indicates that they did not consent to the installation of the Windows 10 operating system.

For small businesses that often use consumer versions of Windows, being forced into installing Windows 10 at inopportune times could prove costly, Edgar says.

“If it takes an hour or 90 minutes to install Windows 10, your business could be down for that period,” says Edgar, who worked as an electrical engineer in the technology sector before being called to the bar. “What happens if some of your programs or hardware aren’t compatible with Windows 10? That’s more time and money lost."

Currently, CASL allows for an individual to make a complaint to the Canadian Radio-television and Telecommunications Commission. However, as of July 1, 2017, new provisions will kick in which allow private litigation under the legislation.

“When that happens, people may be able to sue Microsoft because the Windows 10 installation occurred within the limitation period,” Edgar says. “It may also open the door for a class-action law suit.”

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