Authored by Nevena Urosevic, Associate Director of Legal Affairs
Canada’s Anti-Spam Law (CASL) is celebrating its first year since coming into effect on July 1, 2014. The Act takes a tough stance on spam, imposing up to $10 million in administrative monetary penalties for one violation of CASL.
There have been three cases adjudicated by the CRTC with reference to CASL in the past year, and while all three of them involve businesses and not charities, they are helpful in terms of general compliance principles.
- On March 5, 2015 the Canadian Radio-television and Telecommunications Commission (CRTC) issued a Notice of Violation to Compu-Finder, which included a penalty of $1.1 million for four violations of CASL. Compu-Finder had been sending commercial electronic messages (CEMs) without consent, as well as messages in which the unsubscribe mechanisms did not function properly. According to CRTC’s website, Compu-Finder accounted for 26% of all CASL complaints submitted to CRTC between July 2, 2014 and September 16, 2014. According to CRTC, “Compu-Finder flagrantly violated the basic principles of the law by continuing to send unsolicited commercial electronic messages after the law came into force.”[i]
- On March 25, 2015, the CRTC announced that Plentyoffish Media Inc. (Plentyoffish) agreed to pay a fine of $48,000 for failing to have an unsubscribe mechanism that was clearly and prominently set out, and which could not be readily performed, as required by the legislation. However, once made aware of the investigation by the CRTC, Plentyoffish updated its unsubscribe mechanism to comply with the legislation. As part of the undertaking, Plentyoffish has agreed to develop and implement a compliance program to ensure that its activities are compliant with CASL. The compliance program will include training and education for staff and corporate policies and procedures.[ii]
- On June 29, 2015, the CRTC announced that Porter Airlines Inc. (Porter) has agreed to pay $150,000 as part of an undertaking for alleged violations of CASL. The announcement specifically notes that Porter was cooperative and immediately took corrective action to comply with the legislation. The issue in this case was that Porter sent some commercial emails that did not contain an unsubscribe mechanism. In other instances, the mechanism was not clearly or prominently set out. Certain emails did not provide the complete contact information as required by the law. Porter also allegedly failed to honour, within 10 business days, requests from some recipients to unsubscribe from receiving future CEMs.[iii]
Apart from the clear lesson of complying with the provisions of CASL as outlined in Chapter 8 of our Charities Handbook and two bulletin articles found in the Privacy section[iv] of the Member’s Resources area of our website, these cases indicate that CRTC is actively reviewing complaints that it receives for alleged CASL violations. Furthermore, the fact that the penalties were applied to a smaller company like Plentyoffish, indicates that CRTC expects every entity to be compliant, no matter how small, and that the size of the business or organization will not exempt it from investigation and compliance. Finally, a proper response to the CRTC will impact the outcome of the matter. Efforts by the organization to comply with CASL prior to a penalty by CRTC, and cooperation and quick actions to remedy any of CRTC’s concerns, seem to be factors that will be considered in CRTC’s assessment of the situation, levying of fines, and public disclosure of information relevant to the offence.
[iv] Under “Risk and Asset Management”
Noteworthy is provided for general information purposes and does not constitute legal or professional advice. Every organization’s circumstances are unique. Before acting on the basis of information contained in this blog, readers should consult with a qualified lawyer for advice specific to their situation.