Last June 29th, Porter Airlines Inc. agreed to pay
$150,000 pursuant to an agreement with the Canadian
Radio-television and Telecommunications Commission (CRTC), for
alleged violations to Canada's anti-spam law. Porter Airlines
was indeed under investigation by the CRTC for these alleged
On January 1st, 2014, the majority of the provisions
of Canada's anti-spam legislation came into force1.
These provisions include those governing the transmission of
unsolicited electronic messages for commercial reasons to
recipients. It is, however, relevant to note that on January 15,
2015, the provisions of the Act dealing with the unsolicited
installation of computer software came into force, while the
provisions providing for the right to institute a private action
against infringers will come into force only on July 1,
The last 18 months have revealed that the CRTC intends on
setting examples to ensure that Canada's anti-spam law is
respected. In this regard, the recent case of Porter Airlines
offers a striking example of the broad scope of this law, as well
as the possible consequences of breaching its provisions, even
The Anti-Spam Act: Rules and Interdictions
Since January 1st, 2014, a company may not send
unsolicited commercial electronic messages without obtaining the
consent of the recipient. A commercial electronic message is
defined as an e-mail of which the purpose is to encourage the
recipient to participate in a commercial activity. This includes
advertisement, offers to purchase or sell, as well as business or
The recipient's consent may be implicit in certain
situations specifically provided for in the Act, such as when an
"existing business relationship" exists between the
sender and the recipient. If no implicit consent exists, the
recipient's consent needs to be expressed.
A request for consent must include specific information,
including the purpose for which the consent is being sought and the
information necessary to identify the person soliciting the
recipient. Each commercial electronic message targeted by the Act
must contain an "unsubscribe mechanism" allowing the
recipient to freely express his willingness to stop receiving any
commercial electronic messages.
The case of Porter Airlines
The CRTC suspected Porter Airlines of having violated provisions
of Canada's anti-spam law and decided to launch an
investigation into the company's e-mail activity from July 2014
to April 2015.
The CRTC alleged that Porter Airlines breached several
provisions of the Act, more specifically:
Porter Airlines sent commercial electronic messages that did
not contain the unsubscribe mechanism or had provided such a
mechanism but it was not clearly set out;
Some emails sent by Porter Airlines reportedly did not include
the complete contact information as required; and
Porter Airlines also failed to honour requests from recipients
to unsubscribe within the set delay.
Porter Airlines' spokesperson emphasized that the e-mails in
question were an isolated mistake that occurred as a result of a
migration project which included a transfer to new e-mail software.
Porter Airlines nonetheless agreed to pay a fine of $150,000, the
importance of which reflects the seriousness of the
authorities' view of the anti-spam Act, even in the case where
the potential infringer claims that the breach was the result of an
isolated and "unintentional" error.
In sum, over the last year the anti-spam Act triggered a
tangible impact in the Canadian business community. Porter Airlines
was the third company to be sanctioned by the CRTC, after
Compufinder for $1.1 million as well as Plentyoffish for $48,000.
Considering these substantial penalties, it is not surprising to
see that, since the coming into force of the Act, almost 10% of
companies have simply stopped soliciting their customers through
emails. With over 300,000 complaints received over the last year
alone, the CRTC will certainly continue to investigate and be
aggressive in the sanctions it imposes to offenders. It is
important that companies adjust their policies in order to respect
Canada's anti-spam legislation and not be a target of a CRTC
investigation and sanctions.2
Written in collaboration with Julien Rheault, articling
1 An Act to Promote the Efficiency and Adaptability
of the Canadian Economy by Regulating Certain Activities that
Discourage Reliance on Electronic Means of Carrying out Commercial
Activities, and to Amend the Canadian Radio-television and
Telecommunications Commission Act, the Competition Act, the
Personal Information Protection and Electronic Documents Act and
the Telecommunications Act, SC 2010, c 23.
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