Canada: CASL News: The CRTC Provides Long-Awaited Guidance On Implied Consent And The Assessment Of Administrative Monetary Penalties

Last Updated: January 23 2017
Article by Kelly Nicholson

Although Canada's anti-spam legislation (CASL or the Act) has been in force since July 1, 2014 and a number of substantial penalties have been imposed under its terms, the Canadian Radio-Television and Telecommunications Commission (the CRTC) has so far produced little guidance on the manner in which allegations of non-compliance – and the penalties they attract when a breach is established – are properly assessed. Until the last week in October, the CRTC's Compliance and Enforcement Branch had publicly commented on only one Notice of Violation under CASL; for the most part, enforcement matters have taken the form of "undertakings" – essentially settlement agreements negotiated in private between the CRTC and the party allegedly in breach. This state of affairs has made it difficult for organizations operating in the digital sphere to fully understand the scope of the risk associated with the sending of commercial electronic messages (CEMs) in a manner that, for whatever reason, fails to comply with the CRTC's interpretation of CASL.

On October 26, 2016, the CRTC shed some light on this question and issued its first written decision: CRTC 2016-428. The decision, which reconsiders a notice of violation and administrative monetary penalty (AMP) previously issued to Blackstone Learning Corp., is significant for a number of reasons, but perhaps most significantly because it supplies useful comment on the implied consent provisions of CASL and on the manner in which the CRTC assesses the need for and calculates the amount of AMPs.

The original notice of violation against Blackstone related to nine email campaigns implemented by the company between July 9 and September 18, 2014. During the campaigns, a total of 385,668 promotional emails were sent to employees at 25 different federal and provincial government offices. The campaigns resulted in over 60 formal complaints issued to the CRTC's online Spam Reporting Centre. Following an investigation, which Blackstone refused to cooperate with, the CRTC issued a notice of violation finding there were reasonable grounds to believe Blackstone had sent CEMs without consent and imposing an AMP in the amount of $640,000. Blackstone chose to dispute the notice of violation, arguing that it had implied consent to send the CEMs in question and that the amount of the AMP was too high.

On the issue of implied consent, Blackstone relied on s. 10(9)(b), also known as the "conspicuous publication" rule. In effect, Blackstone asserted, it had implied consent to send its promotional emails because the electronic addresses they had been sent to were publicly available. The CRTC rejected this argument, and – helpfully – explained that the "conspicuous publication" exemption requires more than mere public availability. Rather, the electronic address must have been published in such a manner that it is reasonable to infer consent to receive the type of message sent, in the circumstances. Whether or not consent can be properly implied by "conspicuous publication" of an electronic address under s. 10(9)(b) is a matter to be evaluated on a case-by-case basis. The decision emphasizes that s. 10(9)(b) does not provide organizations with a broad license to contact any email address they find online. Furthermore, the burden of proving that implied consent exists in any given case falls upon the sender of the disputed CEMs. Since Blackstone failed to provide any, or any persuasive, evidence concerning how it arrived at the conclusion that the targets of its email campaigns had effectively granted implied consent, the CRTC upheld the finding in its original notice of violation that CEMs had been sent without consent, and a penalty of some kind was appropriate.

On the question of penalty, Blackstone's position was on firmer ground. Though it was clear that Blackstone had breached the Act and had, moreover, been generally uncooperative throughout, the CRTC ultimately found that while Blackstone had earned a penalty, the amount originally imposed - $640,000 – was too high. A number of factors supported this view, but most notably the fact that the purpose of the penalty is not to punish but rather to promote compliance with the Act. If an organization is functionally destroyed by the AMP, the CRTC reasoned, then the purpose of promoting compliance is defeated. In Blackstone's case, the CRTC accepted unaudited financial statements submitted by the company, which demonstrated that the business was a small one and the original amount of the AMP represented several years' worth of revenue. Other factors also militated in favour of a lesser penalty, including the relatively short time-period during which the offending CEMs had been sent, and the presence of indicators that Blackstone had intended to comply with CASL and would self-correct in the future. In the end, the CRTC reduced the penalty to $50,000, payable within 30 days of the date of the decision.

The decision contains good information for organizations across Canada, but there are key takeaways that senders of CEMs should keep in mind going forward:

  • In order to rely on the "conspicuous publication" rule, an organization must be able to show that it is reasonable in the circumstances to infer that any given recipient has impliedly consented to receipt of a CEM. The burden of proof falls upon the sender
  • Organizations should develop a practice of keeping detailed records of consent, whether express or implied
  • There can be great value in disputing a notice of violation in the proper circumstances – in this case, Blackstone's challenge reduced the AMP from $640,000 to $50,000
  • Cooperating with the CRTC during the investigation process, and demonstrating a desire to self-correct, can help to limit the scope of an AMP

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions