In a precedent setting decision, the Canadian Radio-television and Telecommunications Commission (“CRTC”) has fined the President and Chief Executive Officer of a group of businesses for Canada Anti-Spam Law (“CASL”) compliance violations. The CRTC levied a fine against the executive in the amount of $100,000 after an investigation determined that the companies he oversaw committed systematic violations of CASL.
How did the CRTC reach its landmark CASL compliance decision?
The CRTC’s investigation began in response to complaints submitted by both Canadian businesses and individuals concerning commercial email sent by nCrowd, Inc., and its subsidiaries, nCrowd Commerce, Inc. and nCrowd Limited (collectively, “nCrowd”). These complainants alleged that the subject emails were sent to them without their consent and that they were unable to unsubscribe from future receipt of email from nCrowd. As part of its investigation, the CRTC provided notice to nCrowd’s President and CEO that the agency sought to hold him personally liable for the companies’ alleged violations. The executive’s response, however, did not dissuade the CRTC from finding that personal liability was appropriate under the circumstances. The CRTC found that nCrowd purchased an email distribution list which included many types of addresses, including technical support and website management email addresses, which, according to the CRTC, indicated that the list was comprised of addresses published online rather than addresses for which express consent to receive commercial email was obtained. Moreover, the CRTC determined that nCrowd failed to provide any evidence that it had internal policies or procedures designed to ensure compliance with CASL’s opt-out requirements, which necessitate, among other things, that consumer opt-out requests are honored within 10 business days of receipt.
Ultimately the CRTC concluded that the executive was personally liable for these violations due to the agency’s determination that he directed, authorized, assented to, acquiesced in, or otherwise participated in the commission of the subject violations. Importantly, the CRTC determined that personal liability is proper even if the companies themselves are not held liable for such CASL violations.
Maintaining CASL Compliance
We have previously blogged about the importance of CASL compliance for US companies. Among best practices that can be implemented to help ensure CASL compliance, include advertisers confirming that their marketers are taking proper steps to maintain compliance with applicable regulations. Similarly, marketers should verify that their affiliates are complying with applicable law, including both CASL and CAN-SPAM. Most importantly, businesses should work with experienced email marketing counsel before any campaign launch in order to implement the practices and procedures necessary to prevent the sending of unlawful commercial email.