On March 25, 2015, the CRTC announced that online dating site
operator Plentyoffish Media Inc. has entered into an undertaking
and paid the CRTC $48,000 for an alleged violation of Canada's
anti-spam legislation (CASL).
The CRTC commenced an investigation of Plentyoffish in response
to complaints alleging the site sent commercial emails to its
registered users with an unsubscribe mechanism that was not clearly
and prominently set out and readily performable. The emails
notified users of various services Plentyoffish offers through its
dating site. The violation allegedly occurred between July 1, 2014
and Oct. 8, 2014.
According to the CRTC's Chief Compliance and Enforcement
Officer, the case is an important reminder that organizations must
review their commercial electronic message unsubscribe mechanism to
ensure it is clearly and prominently set out and can be readily
This announcement comes just three weeks after the CRTC issued
its first Notice of Violation under CASL. Under that Notice
>the CRTC issued a penalty of $1.1 million against
Compu-Finder for allegedly sending unsolicited commercial
electronic messages, as well as messages in which the unsubscribe
mechanism did not function properly. In response to the
Notice of Violation, Compu-Finder was given options to pay the
fine, submit written representations to the CRTC with respect to
the Notice of Violation, and/or request an undertaking be entered
into with the CRTC on the matter.
In the case of Plentyoffish, the enforcement lead to an
undertaking without a Notice of Violation being issued. This
appears to have resulted from Plentyoffish taking prompt steps to
cease the infringing behaviour. The CRTC stated that it appreciated
Plentyoffish changing its practices once it became aware of the
problem by updating its unsubscribe mechanism to comply with
The undertaking Plentyoffish has entered into with the CRTC goes
beyond the $48,000 payment. Plentyoffish has also undertaken to
develop and implement a program to ensure that is activities are
compliant with CASL. The compliance program must include staff
training and education and the development of corporate policies
and procedures with respect to CASL compliance.
The CRTC has a broad spectrum of enforcement tools under CASL,
including warning letters, preservation demands, notices to
produce, restraining orders and notices of violation. In
addition, the CRTC may discuss corrective actions with the alleged
CASL violator, which may lead to that person and the CRTC entering
into an undertaking. Such undertakings may include, as in the
Plentyoffish case, the payment of monies and other corrective
In addition to the enforcement of CASL by the CRTC, individuals
will have a private right of action under CASL starting on July 1,
2017. This will permit individuals to apply to Court for an
order awarding them actual damages suffered from a violation of
CASL along with statutory damages. Statutory damages may be awarded
by the Court in amounts up to $1,000,000 for each day on which a
CASL contravention occurred.
It is important to note that no statutory damages may be awarded
under CASL's private right of action where the defendant has
received a Notice of Violation from the CRTC or where the defendant
has entered into an undertaking with the CRTC. As a result,
entering into an undertaking with the CRTC may be an effective
means for CASL violators to limit their related costs as they
remedy any past CASL violations.
Of course, prevention is the best policy. The following tips for
CASL compliance are apparent from the Plentyoffish case:
Review your organization's commercial electronic message
mechanisms to ensure they are CASL compliant. Your
unsubscribe mechanism must be clear, prominent and readily
performable, and must satisfy CASL's other requirements.
Ensure your organization has implemented robust CASL policies
Carry out a staff CASL training program.
Upon becoming aware of CASL non-compliance, take immediate
action to rectify the deficiency and consider entering into a
related undertaking with the CRTC.
The CRTC has stated that is it assessing all complaints
submitted to its Spam Reporting Centre that fall within the
CRTC's mandate and that, as a result, a number of
investigations are underway. We expect more notices of CASL
enforcement actions to follow.
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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