On November 20, 2015, the Canadian Radio-television and Tele-communications Commission (“CRTC”) announced that Rogers Media Inc. paid $200,000 as part of settlement of alleged violations of Canada's anti-spam legislation (commonly known as “CASL”). The alleged CASL violations included the sending of commercial electronic messages containing a deficient unsubscribe mechanism.
CASL creates a comprehensive regime of offences, enforcement mechanisms and potentially severe penalties 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.
For most organizations, the key parts of CASL are the rules for CEMs. Subject to limited exceptions, CASL prohibits the sending of a CEM unless the recipient has given informed consent (express or implied in limited circumstances) to receive the CEM and the CEM complies with prescribed formalities (including an effective and promptly implemented unsubscribe mechanism) and is not misleading.
CASL and its regulations require that a regulated CEM “clearly and prominently set out” an unsubscribe mechanism that is “able to be readily performed”. CRTC guidance explains that an unsubscribe mechanism must be accessible “without difficulty or delay” and “simple, quick and easy” for a consumer to use. CASL requires that a CEM sender give effect to an unsubscribe request “without delay” and in any event no later than 10 business days after the unsubscribe request has been sent, all without any further action on behalf of the unsubscriber.
CASL and its regulations also require that a regulated CEM “clearly and prominently” set out prescribed information, including the name and contact information of the CEM sender, that remains valid for a minimum of 60 days after the CEM is sent.
Violation of CASL's CEM rules can result in severe administrative 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. CASL gives the CRTC regulatory and enforcement authority regarding CEMs and other matters.
The CRTC investigation alleged that during the period July 2014 to July 2015 Rogers Media sent CEMs containing an unsubscribe mechanism that did not function properly or could not be readily performed by the recipient. In addition, the investigation alleged that in some instances the electronic address used to unsubscribe was not valid for the required minimum 60 days, and Rogers Media failed to honour some unsubscribe requests within 10 business days.
As part of the settlement, Rogers Media agreed to comply with CASL and improve its existing CASL compliance program.
The CRTC's Chief Compliance and Enforcement Officer explained: "Companies must respect the choices of Canadians who do not wish to receive commercial emails, and must make it easy for them to unsubscribe from their mailing lists."