Canada: CASL Enforcement Decision - Sending Messages Without Consent

On October 26, 2016, the Canadian Radio-television and Tele-communications Commission issued a Compliance and Enforcement Decision finding that Blackstone Learning Corp. violated Canada's anti-spam legislation (commonly known as "CASL") by sending commercial electronic messages without consent and imposing a $50,000 penalty.


CASL creates a comprehensive regime of offences, enforcement mechanisms and potentially severe penalties (including personal liability for employers, corporate directors and officers) designed to prohibit unsolicited or misleading commercial electronic messages ("CEMs"), the unauthorized commercial installation and use of computer programs on another person's computer system and other forms of online fraud (such as identity theft and phishing).

For most organizations, the key parts of CASL are the rules for CEMs. Subject to limited exceptions, CASL creates an opt-in regime that prohibits the sending of a CEM unless the recipient has given consent (express or implied in limited circumstances) to receive the CEM and the CEM complies with prescribed formalities (including disclosure of contact information and an effective and promptly implemented unsubscribe mechanism) and is not misleading. An organization that sends a CEM has the onus of proving that the recipient gave express or implied consent to receive the CEM.

Violation of CASL's CEM rules can result in severe administrative monetary penalties (up to $1 million per violation for individuals and up to $10 million per violation for organizations), civil liability through a private right of action (commencing July 1, 2017) and vicarious liability on employers, directors and officers who are unable to establish that they exercised due diligence to prevent the CASL violations. CASL gives the Canadian Radio-television and Tele-communications Commission ("CRTC") regulatory and enforcement authority regarding CEMs and other matters.

The Compliance and Enforcement Decision

The Compliance and Enforcement Decision against Blackstone Learning Corp. ("Blackstone") related to nine email campaigns between 9 July and 18 September 2014, involving the sending of 385,668 promotional emails to employees at 25 Canadian federal and provincial government organizations. The email campaigns resulted in at least 60 complaints to CRTC's Spam Reporting Centre. CRTC commenced an investigation. Blackstone refused to cooperate with the investigator or comply with a CRTC order to produce financial statements to the investigator.

After the investigation, the investigator issued a notice of violation asserting reasonable grounds to believe that Blackstone had violated CASL by sending CEMs without consent, and imposing an administrative monetary penalty of $640,000. In accordance with the procedure set out in CASL, Blackstone challenged the notice of violation by making representations to CRTC. Blackstone argued that it had not violated CASL's CEM rules because it had implied consent to send the emails and that, in any event, the administrative monetary penalty was unreasonably high. CRTC rejected Blackstone's argument that it had implied consent to send the promotional emails, but agreed with Blackstone that the administrative monetary penalty was too high.

CASL Violation

Blackstone relied on CASL section 10(9)(b) — known as the "conspicuous publication rule" — to argue that it had implied consent to send the promotional emails because the email addresses to which they were sent were publicly available. CRTC rejected that argument.

CRTC explained that implied consent under the conspicuous publication rule requires more than the public availability of an electronic address. To constitute implied consent to receive CEMs to an electronic address, the electronic address must be "conspicuously published" by or on behalf of the person to whom the message is sent, the publication must not be accompanied by a statement that the person does not wish to receive unsolicited CEMs, and the CEM must be relevant to the person's business, role, functions, or duties in a business or official capacity. CRTC explained that the manner in which an electronic address is published must give rise to a reasonable inference of consent to receive the type of CEM sent.

CRTC held that Blackstone's general assertion that it had implied consent based on publicly available addresses was not sufficient to satisfy Blackstone's legal burden to prove consent. Blackstone did not provide any information regarding how and when it obtained the email addresses, whether the addresses were accompanied by a statement refusing unsolicited CEMs, and how Blackstone's promotional emails were relevant to the roles or functions of the intended recipients. For those reasons, CRTC held that Blackstone had violated CASL's CEM rules by sending promotional emails without consent.

Administrative Monetary Penalty

CASL states that the purpose of an administrative monetary penalty ("AMP") is to promote CASL compliance, and not to punish. CASL lists the factors to be considered when determining the amount of an AMP, including the purpose of the penalty, the nature and scope of the violation, ability to pay and any other relevant factor. CRTC commented on those factors.

  • Purpose: CRTC explained that the purpose of an AMP may include both specific and general deterrence of CASL violations, but cautioned that the objective and effect of an AMP must always be to promote CASL compliance rather than to punish. CRTC also explained that a significant AMP may be necessary to deter non-compliance. CRTC noted that while CASL authorizes significantly higher maximum AMPs than other regulatory regimes (e.g. the Unsolicited Telecommunications Rules), that did not mean that larger AMPs were inherently more appropriate for CASL violations. CRTC concluded that the purpose of an AMP suggested a lower penalty than the one set out in the notice of violation.
  • Nature/Scope of Violation: CRTC explained that while the number of CRMs sent by Blackstone was significant and the CEMs were disruptive, the two-month duration of the violations was relatively short and suggested a lower penalty than the one set out in the notice of violation.
  • Ability to Pay: CRTC explained that Blackstone's ability to pay an AMP could be assessed based on various metrics and information regarding revenue-generating capabilities (e.g. unaudited income statements). CRTC concluded that Blackstone's limited ability to pay suggested a lower penalty than the one set out in the notice of violation.
  • Other — Lack of Cooperation: CRTC explained that Blackstone's failure to cooperate with the investigation and refusal to produce financial statements was a relevant factor that suggested the need for a penalty to ensure compliance with CASL.
  • Other — Self-Correction: CRTC explained that there were indicators that Blackstone had intended to comply with CASL and would self-correct and comply with CASL's CEM rules in the future, which suggested a lower penalty than the one set out in the notice of violation.

CRTC explained that CASL's CEM rules are similar to the Unsolicited Telecommunications Rules regarding automatic dialing-announcing devices (which require express consent), and noted that significantly lower penalties than the one set out in the notice of violation have proven sufficient to encourage compliance with the Unsolicited Telecommunications Rules.

CRTC concluded that, in light of all relevant factors, the investigator's recommended $640,000 AMP should be reduced to $50,000, which CRTC considered appropriate in the circumstances and reasonable and necessary to promote Blackstone's compliance with CASL.


Conspicuous Publication Rule

CRTC's decision reinforces that implied consent based on the conspicuous publication rule requires more than simple public availability of an email address. In particular, an organization that relies on the conspicuous publication rule has the burden of proving that all requirements of the rule — conspicuous publication of the email address by or on behalf of the recipient, no statement refusing CEMs and CEM content relevant to the recipient's business, role, functions or duties — are satisfied for each CEM. Organizations will have to carefully consider the kinds of records (e.g. screen shots of relevant web pages) they should create and maintain so that they are able to prove all elements required by the conspicuous publication rule for each CEM.

It is important to note that there are uncertainties regarding the scope and application of the conspicuous publication rule. For example, how long does the implied consent last, is implied consent withdrawn if the publication of the email address is terminated, and what makes a CEM "relevant" to the intended recipient's business, role, functions or duties? There may also be risks arising from changed circumstances (e.g. a statement refusing unsolicited CEMs added after the email address is collected or changes to a recipient's business, role, functions or duties).


CRTC's decision provides helpful insight into CRTC's approach to assessing AMPs for sending CEMs without consent. It is important to bear in mind that CRTC's decision to reduce the investigator's recommended $640,000 AMP was based on the specific circumstances of Blackstone's case, and different circumstances (e.g. a longer violation period or a greater ability to pay) might have resulted in a significantly larger AMP. CRTC's previous enforcement actions have resulted in the following financial penalties:

  • Compu-Finder: $1.1 million for sending CEMs without consent and with an ineffective unsubscribe mechanism.
  • PlentyofFish Media: $48,000 for sending CEMs with an unsubscribe mechanism that was not clearly and prominently set out and could not be readily performed.
  • Rogers Media: $200,000 for sending CEMs with an unsubscribe mechanism that did not function properly or could not be readily performed or with required content that was not valid for the required minimum 60 days, and for failing to implement some unsubscribe requests within 10 business days.
  • Porter Airlines: $150,000 for sending CEMs without proof of consent and sending CEMs that did not contain required information or have a required unsubscribe mechanism.

About BLG

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

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.