November 2, 2016

caslThe Canadian Radio-television and Telecommunications Commission (“CRTC”) has fined Blackstone Learning Corp. (“Blackstone”) $50,000 for various violations of Canada’s Anti-Spam Law (“CASL”).  In the decision, the first of its kind, CRTC determined that Blackstone had violated CASL in connection with sending 400,000 unsolicited commercial email messages without the requisite consent to do so.

How did the CRTC reach its landmark spam-related decision?

Blackstone’s messages marketed the commercial availability of educational and training-related services, primarily targeting governmental employees.  In response to the CRTC’s initial CASL violation charges, Blackstone argued that it had implied consent from the recipients to market to them via email by virtue of the fact that the recipients had voluntarily published their email addresses.  Nevertheless, the CRTC ultimately concluded that Blackstone was unable to demonstrate how it obtained the subject email addresses, when they obtained them, and whether the recipients’ alleged publication of their email addresses was conspicuous or accompanied by any statement indicating a willingness to receive unsolicited commercial email.  Despite initially seeking a $640,000 penalty for the violations, this figure was significantly reduced by CRTC.  This reduction was based upon a finding that Blackstone had no prior history of violating CASL and the two month period during which the subject messages were sent was short enough to warrant a substantially lower penalty than the maximum allowed under the statute.

How To Avoid CASL and CAN-SPAM-Related Liability?

We have previously blogged about the implications that CASL has for US-based companies.  There are certain best practices that can be implemented to minimize the risk of becoming involved in a “spam” investigation or lawsuit, whether in the United States or Canada.  Advertisers should confirm that their marketers are taking proper steps to maintain compliance with applicable regulations.    Likewise, marketers should ensure that they have proper protocols in place to both ensure their own compliance, as well as to ensure that their affiliates are compliant with applicable law, including both CASL and CAN-SPAM.  Above all, it is most important to work with experienced email marketing counsel before the launch of any campaign in order to implement the practices and procedures necessary to prevent the sending of unlawful commercial email.

If you are interested in this topic, or are otherwise the subject of a “spam” lawsuit or regulatory investigation, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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