A large Canadian media company has agreed to pay C$200,000 as part of an undertaking to resolve alleged violations of Canada's Anti-Spam Law (CASL). The company allegedly failed, among other things, to include unsubscribe mechanisms in certain commercial emails and to honour certain unsubscribe requests within 10 business days, as required by the law, in the period July 2014 to July 2015. The undertaking, dated November 20, 2015, is the fourth public CASL-related enforcement action since the law came into force in July 2014.
CASL is one of the most stringent laws of its kind in the world. It imposes technical requirements on sending commercial emails and text messages, installing computer programs on customers' computers or devices, and restricts certain other business activities. Organizations may be subject to CASL even if they are located outside of Canada. Fines under CASL can be as high as C$10 million per violation, and a private right of action will become available in 2017, potentially exposing businesses to class actions.
The enforcement actions that have been announced under CASL so far demonstrate that non-compliance with CASL can result in real and serious consequences. Here are three takeaways from these enforcement actions for both Canadian and global businesses:
1. Lacking Express Consent Is Not The Only Red Flag
Even if you have obtained the consents required by CASL, Canada's anti-spam regulator may still scrutinize the form and content of your messages, including required disclosures of contact information and unsubscribe mechanisms, to ensure compliance with CASL. In fact, in each of the four enforcement actions to date, CASL, Canada's anti-spam regulator claimed that the sender failed to comply with the formality requirements under CASL:
- a major airline's emails allegedly did not provide the sender's complete contact information as required by CASL;
- a dating website's emails apparently did not contain an unsubscribe mechanism set out clearly and prominently; and
- a training course promoter's emails reportedly did not contain an unsubscribe mechanism that could be readily performed.
These enforcement actions are noteworthy for raising questions about how the CRTC interprets statutory language for "clear and prominent" disclosures and whether an unsubscribe mechanism can be considered "readily performed."
2. Your Audience and Consumers May Trigger CASL Enforcement
Any individual may submit a complaint to the Spam Reporting Centre, the office that receives complaints on behalf of CASL's regulators. The Canadian Government's announcements of CASL-related enforcement actions all imply that they began as investigations of complaints submitted to the office, indicating that consumers are serving as a primary source of investigation leads in the enforcement of CASL. Even inadvertent non-compliance directed at a small group of individuals could potentially lead to serious consequences if individuals complain and the evidence is clear that CASL's requirements were not met.
3. CASL Regulators Are Willing to Seek Millions for Violations
The first reported instance of a penalty sought under CASL was for an amount of C$1.1 million representing just four identified violations of CASL in total, implying an average penalty of C$275,000 per violation. Other amounts paid under CASL were C$200,000, C$150,000 and C$48,000. These are significant amounts of money for civil violations, despite representing a fraction of the maximum penalty under CASL of C$10 million per violation for organizations. In one ongoing case involving misleading representations in emails, the maximum penalty is being sought under CASL-related amendments to the Canadian Competition Act.
The latest enforcement action is a reminder to organizations to ensure they have taken steps to comply with CASL if they have not already, and can demonstrate compliance in the event of a complaint or investigation. To read more about the requirements under CASL and steps to ensure compliance, please click here.
Contributor – Jonathan Tam