As expected, since Canada’s Anti-Spam Legislation (CASL) came into force, the Canadian Radio-television and Telecommunications Commission (CRTC) has been actively enforcing CASL’s anti-spam provisions. In 2015, the CRTC issued three undertakings: a notice of violation, a citation for alleged violations of CASL and a warrant to take down a server allegedly distributing malware. These enforcement actions show that the CRTC is looking at compliance in relation to all aspects of the law.
To date, the largest fine issued was a C$1.1-million administrative monetary penalty (AMP). We expect to see continued enforcement of CASL in 2016.
ONE | TRENDS IN CRTC ENFORCEMENT
Notably, the CRTC entered into undertakings with several major companies for alleged violations of the CASL’s anti-spam provisions, mostly relating to unsubscribe mechanisms. In one instance, a company allegedly sent commercial electronic messages (CEMs), which contained an unsubscribe mechanism that was not set out “clearly and prominently” and was not able to be “readily performed.” In another instance, a company allegedly sent CEMs that either contained an unsubscribe mechanism that was not set out “clearly and prominently,” were missing an unsubscribe mechanism altogether or did not provide complete identification information. A third company allegedly sent CEMs that either contained an unsubscribe mechanism that was not able to be “readily performed,” did not enable the person to indicate his or her wish to no longer receive messages or did not provide an electronic address for purposes of unsubscribing that was valid for a 60-day period after the message was sent. The CRTC also alleges that two of the companies did not give effect to certain unsubscribe requests within 10 business days as required under the law.
Companies should, therefore, review their CEM templates to ensure they comply with CASL’s form and content requirements as well as the functionality of their unsubscribe mechanisms to ensure recipients are able to unsubscribe easily and no longer receive CEMs within 10 business days of unsubscribing.
Compliance Programs and Record-Keeping
In each of the three instances in which the CRTC entered into an undertaking in 2015, the undertaking included a monetary payment (ranging from C$48,000 to C$200,000) and an agreement by the company to update and implement a compliance program that would (1) cover elements such as corporate compliance policies and procedures, training and education, monitoring, auditing, and reporting mechanisms, and (2) apply consistent disciplinary procedures. In one enforcement action, the CRTC took issue with the fact that a company was allegedly sending CEMs to email addresses without proof of consent for each recipient.
This enforcement action serves as a good reminder that record-keeping may be a key tool used to assess compliance. In some contexts, it may not be enough to demonstrate that an individual is on a certain mailing list. If a company is relying on express consent, it would be prudent to keep records that demonstrate express consent, such as records of how and when an individual agreed to be contacted via CEMs.
TWO | TRENDS IN COMPETITION BUREAU ENFORCEMENT
Earlier this year, the Commissioner of Competition filed a notice of application against Budgetcar Inc. and Aviscar Inc. (Avis) and their parent companies for charging fees that the Commissioner alleges were not properly disclosed. The Competition Bureau (Bureau) is seeking C$30-million in AMPs as well as restitution for customers based on false or misleading representations relating to an electronic message in violation of CASL.
In its notice of application, the Bureau specifically alleged that Avis sent electronic messages that contained false or misleading subject-matter information. The hearing is scheduled to commence in 2016.
It is noteworthy that class proceedings predicated on the same alleged advertising activities have been launched contemporaneously.
THREE | CLASS ACTIONS
We expect a trend to develop where class plaintiffs rely on penal and administrative actions under CASL to launch civil class proceedings. This will be even more likely once the private cause of action provisions come into force in July 2017.