March 11, 2015
Last week, the Canadian Radio-television and Telecommunications Commission (“CRTC” or the “Commission”) issued its first Notice of Violation under Canada’s Anti-Spam Law (“CASL”). Canadian corporate training company compu.finder Inc. (“Compu-Finder”) has received a fine of $1.1 million for allegedly sending email without the recipients’ consent or a properly functioning unsubscribe mechanism.
What is CASL, and why is Canada targeting marketers for unsolicited commercial electronic messaging?
Canada’s Anti-Spam Law
CASL became effective in July of last year. The anti-spam law forbids marketers from sending commercial electronic messages (“CEMs”), installing computer programs and/or collecting email addresses using computer programs without obtaining the express consent of consumers. Additionally, CASL prohibits making false or misleading representations in electronic messages and collecting personal information through unauthorized access.
The CRTC, Competition Bureau and Office of the Privacy Commissioner are tasked with enforcing and regulating CASL. These agencies launched an online Spam Reporting Centre so that consumers, businesses and other organizations can report marketers’ unlawful conduct. Organizations that violate CASL risk criminal and civil charges, personal liability for officers and directors and fines of up to $1 million for individuals and $10 million for businesses.
Canada’s new anti-spam law is one of the farthest-reaching and harshest of any country. CASL defines CEMs broadly as any messages that encourage participation in a commercial activity, including email, text messages and instant messaging. These diverse types of electronic messaging are governed by a range of legislation in the United States, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”) and the Telephone Consumer Protection Act (“TCPA”).
On the Offensive
The CRTC wasted no time in its enforcement efforts. In the same month as CASL came into effect, the Commission began an investigation of four reported spam violations involving Compu-Finder, from July to September 2014. According to the CRTC, “an analysis of the complaints made to the Spam Reporting Centre of this industry sector shows that Compu-Finder accounts for 26% of all complaints submitted.”
Manon Bombardier, Chief Compliance and Enforcement Officer for the CRTC, alleges that Compu-Finder “flagrantly violated the basic principles of the law by continuing to send unsolicited commercial electronic messages after the law came into force to email addresses it found by scouring websites.” Last Thursday, the Commission issued Compu-Finder a Notice of Violation and $1.1 million fine. Compu-Finder has thirty days to challenge the finding or pay the penalty.
CASL – Protect Yourself
As Compu-Finder’s recent troubles demonstrate, the CRTC has started cracking down on the sending of unsolicited commercial electronic messaging. It is important to also be aware of the fact that a private right of action for CASL violations will come into effect in 2017. Multinational companies, many of which have faced an unprecedented number of class action lawsuits in the United States under the CAN-SPAM Act and TCPA, respectively, should take their CASL compliance seriously.
If you use electronic channels to market your products or services to consumers in Canada, or if you would like to make sure that your marketing practices comply with CASL, contact us at firstname.lastname@example.org or call us at (212) 246-0900.
The material contained herein is provided for informational 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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