In our August 2014 Nutshell on Canada’s Anti-Spam Legislation (CASL), we highlighted CASL’s conspicuous publication exemption, which establishes that a recipient’s implied consent to a commercial electronic message (CEM) can be derived if (1) the recipient conspicuously published its contact information (e.g., in a publication or a website), (2) without indicating that it doesn’t want to receive communications, and (3) the CEM is relevant to the recipient’s business.

In an important development, the CRTC’s first compliance and enforcement decision under CASL, released earlier this month, meaningfully narrows this exemption. By way of background, the CRTC issued a notice of violation (Notice) and an administrative monetary penalty of $640,000 against Blackstone Learning Corp. in January of 2015. It alleged that Blackstone sent a large number of emails without consent of the recipients (primarily government employees) advertising educational and training services it offered, based on their publicly available electronic addresses.

As authorized by CASL, Blackstone, while not disputing the facts of the matter, challenged the Notice on two central grounds: (i) that it had implied consent to send the CEMs, and (ii) that the amount of the administrative monetary penalty was too high. Following receipt of satisfactory evidence, the CRTC reassessed that amount to $50,000, taking into account various factors including the firm’s ability to pay the penalty.

The CTRC maintained throughout its analysis that the conspicuous publication exemption and related requirements in paragraph 10 (9) (b) of CASL “set a higher standard than the simple availability of electronic addresses”. In order for the exemption to apply, it found that (1) the electronic address must not be accompanied by a statement that the person does not want to receive unsolicited CEMs and (2) the CEM must be relevant to the recipient’s role or function, in order to reasonably infer consent to receive the CEM.

The CRTC emphasized that “the legislation does not provide persons sending CEMs with a broad license to contact an electronic address they find online”. Rather, it is for the person sending the CEM to evaluate, on a case-by-case basis whether the message is relevant to the recipient’s business, role, function or duties. The initial January 2015 Notice provides illustrative examples of such an analysis.

This decision demonstrates that the conspicuous publication exemption requires more than a mere publicly available email address, and even if the recipient does not indicate it doesn’t wish to receive CEMs, the sender must assess the relevance of the CEM to the recipient’s role or function. In practice, this may be a trap for the unawary!

As well, this case demonstrates that challenging the CRTC’s initial notice and administrative monetary penalty assessment may prove helpful to the company on the receiving end of the notice. Here, Blackstone reduced its administrative monetary penalty drastically from $640,000 to $50,000. Other factors that may impact the calculation of the administrative monetary penalty include cooperation with the CRTC investigation, ability to pay, and the demonstration of a good faith effort to comply with CASL.