United States: CRTC Issues First Compliance And Enforcement Decision On Canada's Anti-Spam Legislation

Last Updated: November 17 2016
Article by Gregory T. Parks and Ezra D. Church

Over two years after the enactment of Canada's anti-spam legislation, the Canadian Radio-Television and Telecommunications Commission (CRTC) has issued its first decision on the law, with a particular focus on the consent requirement for sending marketing emails.

Background on Canada's Anti-Spam Legislation

Canada's anti-spam law applies to unsolicited or misleading "commercial electronic messages," which are broadly defined as any message in which one purpose is to encourage participation in a commercial activity. The law therefore applies specifically to marketing or promotional emails. It generally requires the sender to obtain express or implied consent from the recipient. The message itself must also satisfy certain requirements, such as disclosure of the sender's contact information and an "unsubscribe" mechanism. The law provides for a penalty of up to $10 million per violation, civil liability by private right of action (effective July 1, 2017), and vicarious liability for employers, directors, and officers in certain circumstances.

CRTC's Decision

The subject of CRTC's decision1 is Blackstone Learning Corporation, a company that provides educational and training services. In 2014, Blackstone sent over 385,000 unsolicited marketing emails to Canadian government employee email addresses. It appears that Blackstone obtained the email addresses through various government websites. The messages promoted Blackstone's technical writing, grammar, and stress-management programs. The CRTC became aware of these messages after more than 60 of the government employees who received them complained to the CRTC's Spam Reporting Centre. These complaints prompted the CRTC to launch an investigation into Blackstone. On January 30, 2015, CRTC issued a notice of violation finding that Blackstone's marketing emails violated the anti-spam law and proposed a $640,000 penalty.

Blackstone challenged the notice of violation, arguing that (1) it had implied consent from the recipients to send the emails and (2) the penalty imposed was "unreasonably high."

Relying on the anti-spam law's "conspicuous publication exemption," Blackstone argued that it had implied consent to send the emails because the recipients' email addresses were publicly available online. The CRTC rejected this position because the anti-spam law only allows for unsolicited messages to "conspicuously published" email addresses where the message is relevant to the recipient's employment or official role and where the recipient has not indicated that he or she does not wish to receive unsolicited emails. The CRTC reasoned that the law does not provide a "broad license to contact any electronic address" found online; rather, implied consent must be evaluated on a "case-by-case basis." Presumably, had the message been one that related specifically to the government employees' roles, that might have been acceptable. For example, if a government employee who received the Blackstone marketing email had a public website profile that stated that the employee is responsible for purchasing office supplies and that suggested (either directly or indirectly) that potential vendors send an email with information, that scenario would likely meet the criteria for "implied consent."

With respect to Blackstone's marketing emails, the CRTC found that Blackstone did not satisfy the exemption because it failed to provide any supporting information with respect to

  • where or how it discovered any of the recipient email addresses in question;
  • when it obtained them;
  • whether their publication was conspicuous;
  • whether they were accompanied by a statement indicating that the person does not want to receive unsolicited commercial electronic messages; or
  • how it determined that the emails it was sending were relevant to the roles or functions of the intended recipients.

The CRTC, therefore, affirmed that Blackstone violated the anti-spam law.

With respect to whether the $640,000 penalty against Blackstone was appropriate, the CRTC considered a number of factors. Chief among those were Blackstone's ability to pay and its cooperation with the CRTC. The CRTC noted that it could not initially determine whether Blackstone was able to pay the penalty because Blackstone did not provide financial information requested by the CRTC. But based on some unaudited financial statements that Blackstone eventually produced, the CRTC determined that the original penalty would amount to several years' worth of Blackstone's revenues. As such, the CRTC concluded that a $50,000 penalty was more appropriate and proportionate to the specific facts of the case.  


This decision shows that the CRTC is determined to vigorously investigate complaints and enforce Canada's anti-spam law. US companies need to be aware of the requirements of this law when sending marketing messages to email addresses that they know or should know to be in Canada. Companies should understand that they cannot send marketing emails to Canadian email addresses solely because the email addresses are available online.

If a company does send emails because addresses are online, the company should be sure to

  • establish a link between the recipient's role or responsibility and the email being sent; and
  • maintain copies of the information it obtained online to document that the email addresses were obtained online.

The decision also reveals that, under certain circumstances, there may be value in challenging a notice of violation by the CRTC, enabling companies to provide additional information to the CRTC and obtain a more favorable outcome.

In many other jurisdictions, including in Europe and many countries in Asia, there are specific prohibitions on sending marketing communications without consent. There are also requirements to give the recipients the right to "opt out" of future marketing communications. Many European data protection authorities, including in the United Kingdom, have increased their enforcement of these laws and issued fines to companies. In the United Kingdom, there is a proposed change in the law to make the directors of marketing companies personally liable for breaching direct marketing laws.

In the United States, the federal CAN-SPAM Act (15 U.S.C. § 7704) requires that marketing emails to promote a commercial product or service must meet certain requirements, including a non-deceptive subject line, identification as an advertisement, a physical address for the sender, an opt-out mechanism, and the timely honoring of opt-out requests. Obtaining the recipient's prior affirmative consent only relieves companies of the requirement to identify the message as an advertisement; all other CAN-SPAM requirements otherwise apply. Violating CAN-SPAM is costly for companies as the Federal Trade Commission just recently increased the maximum penalty from $16,000 to $40,000 per email.


1 Compliance and Enforcement Decision Re: Blackstone Learning Corp., CRTC 2016-428

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

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.

In association with
Related Topics
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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