The Canadian anti-spam law (“CASL”) came into effect on July 1, 2014 and includes the ability to levy severe administrative monetary penalties of up to $10 million for one violation of CASL. In March, 2015, the Canadian Radio-television and Telecommunications Commission (“CRTC”) gave its first indication on issuing penalties and addressing violations of CASL by rendering two decisions dealing with CASL violations.
On March 6, 2014, the CRTC issued a notice of violation against Academie Compu.finder (“Compu.finder”) which included an administrative monetary penalty of $1.1 million dollars. Compu.finder had 30 days to pay the penalty, make written representations regarding the allegations or enter into a written undertaking with the CRTC regarding the penalty and compliance steps.
The CRTC found that Compu.finder was offside CASL in two respects. First, the CRTC found that Compu-Finder did not obtain express consent from recipients, as required by CASL, for sending commercial electronic messages (“CEMs”) to email addresses it obtained online. The CRTC made this finding, despite the existence of an exemption under CASL for sending CEMs to published electronic addresses where the recipient has not indicated s/he does not wish to receive unsolicited CEMs and where the email is relevant to his/her business, roles, functions or duties in a business or official capacity. Compu.finder provides training courses and in this connection, sent emails to recipients regarding its various training programs. The CRTC, however, found that the recipients of the emails from Compu.finder did not find the emails relevant to their job roles, thereby introducing an element of subjectivity into this exemption. Second, the CRTC found that Compu.finder did not have a CASL-compliant unsubscribe mechanism within its CEMs. CASL requires that the unsubscribe mechanism be clearly and prominently set out and that it can be readily performed.
The CRTC further commented that Compu.finder did not cooperate with the CRTC when contacted regarding its non-compliance and that complaints against Compu.finder formed 26% of the complaints filed with the CRTC between July 1, 2014 and September 16, 2014. Both of these factors appear to have influenced the amount of the penalty issued by the CRTC against Compu.finder.
On March 24, 2015, the CRTC entered into an undertaking whereby PlentyofFish Media Inc. (“PlentyofFish”) agreed to pay a fine of $48,000 for failing to have a CASL-compliant unsubscribe mechanism in emails sent to its customers. The CRTC found that PlentyofFish did not have an unsubscribe mechanism that was clearly and prominently set out and that could be readily performed. In this case, the CRTC noted that PlentyofFish cooperated with the CRTC by fixing its unsubscribe mechanism to be CASL-compliant and by agreeing to develop an anti-spam compliance plan, including training its employees on CASL requirements.
These decisions from the CRTC regarding penalties under CASL clearly indicate that the CRTC is actively reviewing complaints that it receives for alleged violations of CASL. As a result, businesses should confirm that they have CASL compliant processes in place in order to avoid potentially large penalties for CASL violations. Businesses should also be prepared to respond promptly and cooperate with the CRTC if they are contacted regarding potential CASL violations.