The Canadian Radio-television and Telecommunications Commission
("CRTC") announced that Porter Airlines Inc. has agreed
to pay $150,000 as part of an undertaking for alleged violations of
Canada's anti-spam legislation.
A company caught in the CASL crosshairs can pay the penalty
assessed by the CRTC, make written representations (in aid of
reducing such penalty), or enter into an "undertaking"
with the CRTC on the issue. The CRTC notes that Porter Airlines
voluntarily entered into an undertaking, and the undertaking
appears to have been entered into prior to the issuance of a Notice
of Violation. If an undertaking is entered into prior to a Notice
of Violation being issued, no such Notice will issue. This appears
to be the situation here.
However, as is evident, the CRTC will issue a media release
whether or not a Notice of Violation is issued. Businesses
concerned about reputational impact of a CASL investigation
may not have many options once an enforcement proceeding has
The investigation spanned the activities of Porter Airlines
between July 2014 (when CASL first came into force) and April 2015.
The CRTC alleges Porter Airlines sent "some" commercial
did not contain an unsubscribe mechanism;
did have an unsubscribe mechanism, but such mechanism was
"not clearly or prominently set out";
failed to honour, within 10 business days, requests from some
recipients to unsubscribe from receiving future commercial emails;
did not provide the complete contact information as required by
For certain other emails sent between July 2014 and February
2015, the CRTC alleges that the company was "unable to provide
proof that it had obtained consent for each electronic address that
received its commercial emails."
The CRTC provided no information on the number of complaints
received, or the number of allegedly infringing emails that were
the subject of the investigation.
As part of the undertaking, Porter Airlines undertook to improve
its existing compliance program, which will include increased
training and education for staff and improved corporate policies
and procedures. The CRTC noted that "[o]nce made aware of the
investigation by the CRTC, Porter Airlines was cooperative and
immediately took corrective actions to comply with the
Guidance for Business
Proof of consent continues to be an issue for some businesses,
with companies often relying on general policies as evidence of
appropriate consent. Businesses would be wise to review the
completeness of their current consent documentation processes,
which should include specific, detailed documentation of each
consent received. Companies may want to consider conducting a
"spot audit" to determine if they could provide such
documentation, and do so in a timely manner. As the CRTC notes in
its release, "[s]ome businesses are under the mistaken
impression that they are compliant with the law by relying on
general business practices or policies as proof of consent for the
majority of the electronic addresses to which they send their
commercial emails. This is simply not the case."
Businesses should also revisit their unsubscribe mechanism to
confirm that requests to unsubscribe are being actioned within the
required 10 business days. This will be particularly important for
those businesses which have outsourced this marketing function to
suppliers; confirmation of appropriate unsubscribe mechanisms may
require a business to invoke its audit rights under an agreement
with such a supplier. As before, robust documentation of
unsubscribe requests and actions should be maintained (and if a
supplier is involved, this requirement should be a term of any
applicable services agreement).
Disappointingly, the CRTC did not provide any further comment on
exactly why Porter Airlines' unsubscribe mechanism was
"not clearly or prominently set out". Was this a case of
the font being too small? Having to click through too many pages?
Forcing customers to log in to an account prior to unsubscribing?
With no clear guidance from the CRTC on this, businesses would be
well advised to approach this issue conservatively.
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