Since July 1, 2014, Canada's Anti-Spam Law (or CASL) has
been in effect, and the software-related rules have been in force
since January 15, 2015.
With the benefit of hindsight, we can see a few patterns emerge
from the efforts by the enforcement trifecta: the Privacy
Commissioner of Canada, the CRTC and the Competition Bureau. (For
background, see our earlier posts) What follows is a
round-up of some of the most interesting and instructive
March 2015 - A notice of violation was issued by the
Competition Bureau to 3510395 Canada Inc. (dba Compu.Finder) with
an accompanying administrative monetary penalty of
$1,100,000 for sending commercial electronic
messages without the consent and for commercial electronic messages
which contained an ineffective unsubscribe mechanism in violation
March 2015 - A penalty of $48,000 was levied
against Plentyoffish Media Inc. as part of an undertaking
concerning an alleged CASL violation related to an unsubscribe
mechanism that was not set out "clearly and prominently"
and was not able to be "readily performed".
March 2015 - The Competition Bureau commenced action against
Avis Budget Group Inc. for deceptive marketing practices, seeking
$30 million in administrative monetary penalties
from the companies, and refunds for consumers. The Bureau took
action under CASL since Avis and Budget used electronic messages to
disseminate the alleged false or misleading representations.
June 2015 - Porter Airlines Inc. paid $150,000
as part of an undertaking concerning certain CASL violations that
were very similar to those which caught Plentyoffish. The Porter
allegations related to commercial electronic messages that
contained an unsubscribe mechanism that was not set out
"clearly and prominently", or that were missing an
November 2015 - Similarly, Rogers Media paid
$200,000 as part of a CASL investigation into
commercial electronic messages that either contained an unsubscribe
mechanism that was not able to be "readily performed",
that did not enable the person to indicate their wish to no longer
receive messages or that did not provide an electronic address for
the purposes of unsubscribing that was valid for a period of 60
days after the message was sent.
This certainly points to the more technical risks of poorly
implemented unsubscribe features, rather than underlying gaps in
consent. Perhaps this is because heavy enforcement action related
directly to consent is still to come. Implied consent can be relied
upon during a three-year transitional period. After that window
closes, expect enforcement to focus on failures of consent.
To put this all in perspective, consider enforcement of other
laws within the CRTC mandate: in 2014 the CRTC did not issue any
notices of violation of CASL, but issued 10 notices of violation
related to the Unsolicited Telecommunications Rules and the
National Do Not Call List (DNCL); in 2015 the CRTC issued 1 notice
of violation of CASL and about 20 related to the Do Not Call
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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