As expected, since Canada's Anti-Spam Legislation (CASL)
came into force, the Canadian Radio-television and
Telecommunications Commission (CRTC) has been actively enforcing
CASL's anti-spam provisions. In 2015, the CRTC issued three
undertakings: a notice of violation, a citation for alleged
violations of CASL and a warrant to take down a server allegedly
distributing malware. These enforcement actions show that the CRTC
is looking at compliance in relation to all aspects of the law.
To date, the largest fine issued was a C$1.1-million
administrative monetary penalty (AMP). We expect to see continued
enforcement of CASL in 2016.
ONE | TRENDS IN CRTC ENFORCEMENT
Notably, the CRTC entered into undertakings with several major
companies for alleged violations of the CASL's anti-spam
provisions, mostly relating to unsubscribe mechanisms. In one
instance, a company allegedly sent commercial electronic messages
(CEMs), which contained an unsubscribe mechanism that was not set
out "clearly and prominently" and was not able to be
"readily performed." In another instance, a company
allegedly sent CEMs that either contained an unsubscribe mechanism
that was not set out "clearly and prominently," were
missing an unsubscribe mechanism altogether or did not provide
complete identification information. A third company allegedly sent
CEMs that either contained an unsubscribe mechanism that was not
able to be "readily performed," did not enable the person
to indicate his or her wish to no longer receive messages or did
not provide an electronic address for purposes of unsubscribing
that was valid for a 60-day period after the message was sent. The
CRTC also alleges that two of the companies did not give effect to
certain unsubscribe requests within 10 business days as required
under the law.
Companies should, therefore, review their CEM templates to
ensure they comply with CASL's form and content requirements as
well as the functionality of their unsubscribe mechanisms to ensure
recipients are able to unsubscribe easily and no longer receive
CEMs within 10 business days of unsubscribing.
Compliance Programs and Record-Keeping
In each of the three instances in which the CRTC entered into an
undertaking in 2015, the undertaking included a monetary payment
(ranging from C$48,000 to C$200,000) and an agreement by the
company to update and implement a compliance program that would (1)
cover elements such as corporate compliance policies and
procedures, training and education, monitoring, auditing, and
reporting mechanisms, and (2) apply consistent disciplinary
procedures. In one enforcement action, the CRTC took issue with the
fact that a company was allegedly sending CEMs to email addresses
without proof of consent for each recipient.
This enforcement action serves as a good reminder that
record-keeping may be a key tool used to assess compliance. In some
contexts, it may not be enough to demonstrate that an individual is
on a certain mailing list. If a company is relying on express
consent, it would be prudent to keep records that demonstrate
express consent, such as records of how and when an individual
agreed to be contacted via CEMs.
TWO | TRENDS IN COMPETITION BUREAU ENFORCEMENT
Earlier this year, the Commissioner of Competition filed a
notice of application against Budgetcar Inc. and Aviscar Inc.
(Avis) and their parent companies for charging fees that the
Commissioner alleges were not properly disclosed. The Competition
Bureau (Bureau) is seeking C$30-million in AMPs as well as
restitution for customers based on false or misleading
representations relating to an electronic message in violation of
In its notice of application, the Bureau specifically alleged
that Avis sent electronic messages that contained false or
misleading subject-matter information. The hearing is scheduled to
commence in 2016.
It is noteworthy that class proceedings predicated on the same
alleged advertising activities have been launched
THREE | CLASS ACTIONS
We expect a trend to develop where class plaintiffs rely on
penal and administrative actions under CASL to launch civil class
proceedings. This will be even more likely once the private cause
of action provisions come into force in July 2017.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.
Emotional culture is influenced in great part by the mindset and actions of leadership, although employees also play more of a role than they may realize in creating the culture that exists in the group.
The session will be led by Dr. Robert Brooks, an award-winning author and psychologist. In his presentation, Dr. Brooks will describe the mindset and realistic practices of leaders and staff that help to nurture and sustain a culture characterized by positive emotions, satisfying, respectful relationships, a sense of meaning and ownership for one’s work, and enhanced job performance. Examples will be offered to illustrate strategies for developing a positive emotional culture in an organization.
Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).