March 10, 2017
On March 9, 2017, the Canadian CRTC announced that it had imposed a $15,000 administrative monetary penalty on an individual who allegedly engaged in electronic marketing to promote the sale of commercial flyers, without complying with CASL’s (Canada’s anti-spam law) consent, identification and in some cases unsubscribe requirements.
The fundamental requirements of CASL relate to obtaining express consent (or meeting an exception or category of implied consent), identification (in both consent requests and commercial electronic communications) and including an easy unsubscribe mechanism in electronic communications. It is critical for electronic marketers to precisely meet CASL’s basic consent, identification and unsubscribe requirements.
While the size of the penalty in this case may not seem significant by corporate measures, it nevertheless is a clear indication that the CRTC is quite willing to take enforcement measures against not only corporations but also individuals and smaller marketers. The penalties imposed to date under Canada’s anti-spam legislation have ranged from AMPs in the range imposed in this case to slightly over $1 million.
This case is also unfortunately a clear illustration of the potential impacts on small and medium sized-businesses’ attempts to market and comply with a difficult, unclear, expensive and cumbersome law.
Having said that, this case does somewhat help to further decode the CRTC’s investigation and enforcement methods. In this regard, some key aspects of this recent decision include:
1. The respondent received a penalty of $15,000 for 58 e-mails (by my math, about $258 per e-mail). It is slightly difficult to understand the consumer harm stemming from 58 e-mails.
2. The conduct occurred over a relatively short period (about three and half months).
3. The CRTC received submissions from 50 individuals through its Spam Reporting Centre relating to the alleged infringements. The practical lesson for marketers here is that annoyed recipients – even on a relatively small scale, as in this case – may lead to enforcement and penalties.
4. The CRTC’s investigation occurred about two years after the activities, but it did proceed. This indicates that there may currently be some lag or delay reflected in the CRTC’s enforcement and that companies that violated CASL relatively soon after its coming into force may still face enforcement. One does wonder, however, about the cost of an approximately 3-year investigation to carry out enforcement against a sender of 58 e-mails.
5. The CRTC describes its Internet forensic methods in some detail that led it to conclude that the e-mails were being sent by the respondent and from his IP address.
6. The CRTC rejected claims that the marketer’s e-mails were sent by 3rd party boarders or others, as claimed by the respondent, which the CRTC concluded was unfounded.
One of the most important questions raised by this recent case is whether it is now time to amend CASL to allow Canadian companies to compete with U.S. and international companies without facing unclear regulation and potentially significant penalties, particularly given the impending private action rights that will come into force this July.
More to come soon from me on recommended CASL reforms.
For some of my recent CASL posts, see: CASL (Anti-Spam Law) Private Action Rights Come Into Force July 1st: 10 Key Points, Why CASL is Bad for Canada’s Economy and How to Lighten It (guest post), Major Brand Agrees to Penalty in CASL (Canadian Anti-spam Law) Consent Case , CASL’s (Anti-spam Law) Private Action Rights – Less Than a Year Until in Force and Canadian Anti-Spam Law (CASL): New CRTC Guidance on Documenting Consent.
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