For those of us wondering when the first shot under Canada's
anti-spam law ("CASL") would be heard, we now have our
answer. Last week the Canadian Radio Television and
Telecommunications Commission ("CRTC") issued the very
first Notice of Violation under CASL levying a $1.1 million
administrative monetary penalty against Compu-Finder, a company
that provides training consulting services.
In its March 5th press release (available here) CRTC noted that within a day of CASL
coming into force on July 1, 2014 the Spam Reporting Centre began
receiving complaints about Compu-Finder's email
practices. In fact, according to the press release, 26% of
all of the complaints received by the Spam Reporting Centre for
this industry sector were in relation to Compu-Finder's
activities. This is even more astounding when you consider
that Compu-Finder's activities amount to just four violations
that occurred between July 2, 2014 and September 16, 2014.
While the CRTC's press release characterizes the activities
of Compu-Finder as a "flagrant disregard" of CASL, the
$1.1 million administrative monetary penalty does still fall short
of the $10 million maximum allowable penalty. Compu-Finder
has 30 days to submit its written response, and pay the full
penalty. They may also commit to an undertaking to correct their
activities, which could result in a reduced penalty.
From its investigation, the CRTC alleges that Compu-Finder sent
commercial electronic messages ("CEMs") without the
necessary recipients' consent and further that they sent CEMs
in which the required unsubscribe mechanisms did not function
The Consent Issues
The CRTC's press release notes that Compu-Finder sent
unsolicited emails to addresses for businesses it found by scouring
CASL provides an exemption for sending CEMs between businesses
(meaning no consent or unsubscribe requirements would apply). In
order to be exempt, the businesses though must have a
"relationship" (that term remains undefined) and the
message must "concern the activities of the
organization". While one could possibly argue that
Compu-Finder's offered management training services (which were
noted to include topics such as management, social media and
professional development) at least generally relate to or concern
activities of most businesses (who would likely engage in some form
of employee training), it is difficult to see a strong case being
made that a relationship of any sort would exist between
Compu-Finder and an unknown business when the email address of the
business was found by mining the internet.
CASL also provides that a business will have implied consent to
send CEMs if a person has conspicuously published their email
address without indicating that they do not wish to receive
unsolicited messages. However, such messages must be relevant
to the recipients' business, role, function or duties in a
business or official capacity to qualify. Again, one could
argue that Compu-Finder's emails were relevant to the
recipients' role, function, duties, etc. in a general sense,
but the CRTC statement (and the level of complaints) clearly shows
the recipients in fact did not believe Compu-Finder's emails
were relevant. This suggests a subjective test on the part of
the recipient which will certainly change how the sender seeks to
rely on this form of implied consent.
Hopefully more information will come to light in the coming
weeks, including through Compu-Finder's response to the Notice
of Violation. Of particular interest will be the CRTC's
analysis of what constitutes a "relationship" sufficient
to allow businesses to avail themselves of the business to business
exemption and if the test for whether a message is relevant to the
intended recipients' role, function, duties, etc. is in fact a
subjective test considered from the perspective of the particular
For more information please see our Guide to Canada's
Anti-Spam Legislation available
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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