On March 25, 2015, the Canadian Radio-television and
Tele-communications Commission ("CRTC")
announced that the Vancouver-based, online dating service
PlentyofFish paid $48,000 as part of a voluntary settlement of an
alleged violation of Canada's anti-spam law (commonly known as
"CASL"). The alleged CASL violation
related to the sending of commercial electronic messages that
included a deficient unsubscribe mechanism.
CASL creates a comprehensive regime of offences, enforcement
mechanisms and potentially severe penalties designed to prohibit
unsolicited or misleading commercial electronic messages
("CEMs"), the unauthorized commercial
installation and use of computer programs on another person's
computer system and other forms of online fraud.
For most organizations, the key parts of CASL are the rules for
CEMs. Subject to limited exceptions, CASL prohibits the sending of
a CEM unless the recipient has given informed consent (express or
implied in limited circumstances) to receive the CEM and the CEM
complies with prescribed formalities (including an effective and
promptly implemented unsubscribe mechanism) and is not
CASL and its regulations require that a regulated CEM
"clearly and prominently set out" an unsubscribe
mechanism that is "able to be readily performed". CRTC
guidance explains that an unsubscribe mechanism must be accessible
"without difficulty or delay" and should be "simple,
quick and easy" for a consumer to use.
Violation of CASL's CEM rules can result in severe
administrative penalties (up to $1 million per violation for
individuals and up to $10 million per violation for organizations),
civil liability through a private right of action (commencing July
1, 2017) and vicarious liability on employers, directors and
officers. CASL gives the CRTC regulatory and enforcement authority
regarding CEMs and other matters.
Acting on complaints, the CRTC investigated PlentyofFish's
alleged sending of CEMs, to registered users of the online dating
service, with an unsubscribe mechanism that was not clearly and
prominently set out and which could not be readily performed.
Once made aware of the CRTC investigation, PlentyofFish updated
its unsubscribe mechanism to be CASL compliant. PlentyofFish then
entered into a voluntary settlement (known as an
"undertaking") with CRTC, which includes a $48,000
payment and a commitment by PlentyofFish to develop and implement a
CASL compliance program, including training and education of staff
and corporate policies and procedures for CASL compliance.
The CRTC's Chief Compliance and Enforcement Officer
explained: "This case is an important reminder to businesses
that they need to review their unsubscribe mechanisms to ensure
they are clearly and prominently set out and can be readily
performed. We appreciate that Plentyoffish Media changed its
practices once it became aware of the problem."
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