Hot on the heels of the Compu-Finder case reported earlier
here, the CRTC announced yesterday that PlentyOfFish Media
Inc., a Canadian online dating website, had agreed to pay $48,000
in administrative monetary penalties (AMPs) as part of a settlement
with the CRTC in respect of an alleged violation of Canada's
anti-spam legislation or CASL. Under the settlement, PlentyOfFish
will be required to develop and implement a compliance program to
ensure that its activities are compliant with CASL.
While the Compu-Finder case centered around the issue of whether
recipients of commercial electronic messages (CEMs) had provided
the requisite consent, this latest case deals with the form and
functionality of the unsubscribe mechanism required in non-exempt
Requirement Under CASL
CASL has specific requirements regarding the unsubscribe
mechanism. According to Section 11(1)(a) of CASL, the unsubscribe
"enable the person to whom the
commercial electronic message is sent to indicate, at no cost to
them, the wish to no longer receive any commercial electronic
messages, or any specified class of such messages, from the person
who sent the message or the person - if different - on whose behalf
the message is sent, using
(i) the same electronic means by which
the message was sent, or
(ii) if using those means is not
practicable, any other electronic means that will enable the person
to indicate the wish; and
(b) specify an electronic address, or
link to a page on the World Wide Web that can be accessed through a
web browser, to which the indication may be sent."
The unsubscribe mechanism must be "valid" for 60 days
after the date the message is sent. Unsubscribe requests must be
processed without delay and in any event within 10 business days of
receipt of the request. In addition, pursuant to the Electronic
Commerce Protection Regulations (CRTC), there is an additional
requirement that the unsubscribe mechanism be set out "clearly
and prominently" in the message and that it is "able to
be readily performed."
Why is this latest CRTC enforcement action significant? In our
view, it clearly shows that the CRTC is focused not only with the
fundamental issue of whether recipients of CEMs have provided the
necessary consents, but also the actual form of the CEM itself. In
the PlentyOfFish case, emails were supposedly sent to users of the
site, however, the CEM did not have a clearly labelled or
easy-to-use unsubscribe mechanism.
Given that registered site users would either have provided some
form of express consent or that "implied consent" (was
obtained under the existing business relationship concept), we
believe the CRTC is signalling that, even if express or implied
consents are in place, the form of the CEM still matters and that
it is important that CEMs meet all of the very specific and
detailed requirements of CASL.
We also remind readers that, as of July 1, 2017, a private right
of action for violations of CASL comes into effect. Entering into
an undertaking with the CRTC in respect of an alleged CASL
infraction will serve to limit the remedies available to private
litigants arising from the same matter, so we can expect to see an
increase in these undertakings in the months and years to come.
This case is noteworthy for several reasons. First, it clearly
signals that the CRTC is stepping up its enforcement action and
will not hesitate to use the tools available to it under CASL.
Second, in addition to verifying that businesses obtain the
requisite consents, the CRTC is closely looking at whether
businesses sending CEMs are complying with the specific
requirements of CASL (e.g., how unsubscribe mechanisms are
presented to recipients). Lastly, businesses should consider
implementing a CASL compliance policy (coupled with training and
education for staff) as a risk mitigation strategy.
We will continue to monitor the evolution of CASL enforcement
and keep our readers updated on developments as they occur.
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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