Last June 29th, Porter Airlines Inc. agreed to pay $150,000 pursuant to an agreement with the Canadian Radio-television and Telecommunications Commission (CRTC), for alleged violations to Canada’s anti-spam law. Porter Airlines was indeed under investigation by the CRTC for these alleged violations.
On January 1st, 2014, the majority of the provisions of Canada’s anti-spam legislation came into force1. These provisions include those governing the transmission of unsolicited electronic messages for commercial reasons to recipients. It is, however, relevant to note that on January 15, 2015, the provisions of the Act dealing with the unsolicited installation of computer software came into force, while the provisions providing for the right to institute a private action against infringers will come into force only on July 1, 2017.
The last 18 months have revealed that the CRTC intends on setting examples to ensure that Canada’s anti-spam law is respected. In this regard, the recent case of Porter Airlines offers a striking example of the broad scope of this law, as well as the possible consequences of breaching its provisions, even unintentionally.
The Anti-Spam Act: Rules and Interdictions
Since January 1st, 2014, a company may not send unsolicited commercial electronic messages without obtaining the consent of the recipient. A commercial electronic message is defined as an e-mail of which the purpose is to encourage the recipient to participate in a commercial activity. This includes advertisement, offers to purchase or sell, as well as business or investment opportunities.
The recipient’s consent may be implicit in certain situations specifically provided for in the Act, such as when an “existing business relationship” exists between the sender and the recipient. If no implicit consent exists, the recipient’s consent needs to be expressed.
A request for consent must include specific information, including the purpose for which the consent is being sought and the information necessary to identify the person soliciting the recipient. Each commercial electronic message targeted by the Act must contain an “unsubscribe mechanism” allowing the recipient to freely express his willingness to stop receiving any commercial electronic messages.
The case of Porter Airlines
The CRTC suspected Porter Airlines of having violated provisions of Canada’s anti-spam law and decided to launch an investigation into the company’s e-mail activity from July 2014 to April 2015.
The CRTC alleged that Porter Airlines breached several provisions of the Act, more specifically:
- Porter Airlines sent commercial electronic messages that did not contain the unsubscribe mechanism or had provided such a mechanism but it was not clearly set out;
- Some emails sent by Porter Airlines reportedly did not include the complete contact information as required; and
- Porter Airlines also failed to honour requests from recipients to unsubscribe within the set delay.
Porter Airlines’ spokesperson emphasized that the e-mails in question were an isolated mistake that occurred as a result of a migration project which included a transfer to new e-mail software. Porter Airlines nonetheless agreed to pay a fine of $150,000, the importance of which reflects the seriousness of the authorities’ view of the anti-spam Act, even in the case where the potential infringer claims that the breach was the result of an isolated and “unintentional” error.
In sum, over the last year the anti-spam Act triggered a tangible impact in the Canadian business community. Porter Airlines was the third company to be sanctioned by the CRTC, after Compufinder for $1.1 million as well as Plentyoffish for $48,000. Considering these substantial penalties, it is not surprising to see that, since the coming into force of the Act, almost 10% of companies have simply stopped soliciting their customers through emails. With over 300,000 complaints received over the last year alone, the CRTC will certainly continue to investigate and be aggressive in the sanctions it imposes to offenders. It is important that companies adjust their policies in order to respect Canada’s anti-spam legislation and not be a target of a CRTC investigation and sanctions.2
Written in collaboration with Julien Rheault, articling student