The Canadian Anti-Spam Law: Recent developments

April 7, 2015

Anti-Spam

Almost one year ago, I gave a talk for Kaleidoscope on the new Canadian anti-spam law, “CASL.” At that time, the new law had not yet gone into effect and part of my talk speculated on how the law may be enforced. As most of the new CASL law came into effect in the summer of 2014 CRTC, the government agency in charge of enforcing CASL, is taking steps to enforce the new law.

The basics: What is CASL?

CASL is a law designed to reduce the amount of spam that Canadians receive electronically. Amongst other things, the law requires that in most circumstances, businesses attain “express consent” from users prior to sending them commercial electronic messages. While there is some confusion over what exactly qualifies as a “commercial electronic message”, we can say that the law applies to e-mail messages and may apply social media messaging as well.

Businesses are also required to include a clear and easy-to-use “unsubscribe” mechanism, to allow users receiving commercial electronic messages to indicate their desire not to receive any further messages from that business. Businesses violating these rules may be liable to pay sizeable fines to the CRTC – potentially up to $10M per violation!

Needless to say, many businesses were worried about their compliance with CASL and whether they would be liable to pay large fines for minor or inadvertent breaches of the new law. Until recently, much of the discussion around the implementation of CASL by the CRTC was simply speculation as no enforcement action had yet been taken. Recently, this has changed.

The current situation

The CRTC has been active in attempting to enforce the provisions of the new CASL law and has made two decisions that offer businesses guidance on how this law will be enforced in the future. On March 5, 2015, the CRTC fined Quebec company Compu-Finder $1.1 million and on March 22, 2015 announced that Plentyoffish Media Inc. had agreed to pay a $48,000 fine.

On the one hand Compu-Finder was found by the CRTC to have been sending electronic messages without the recipients’ consent and without a functioning unsubscribe mechanism. On the other hand Plentyoffish Media Inc. was found to have sent messages that did not have a clearly labelled or easy-to-use unsubscribe mechanism.

Takeaways

Compu-Finder is reportedly one of the most egregious spammers in Canada while Plentyoffish Media Inc. has been punished for the form of these messages. It appears that Plentyofffish, by agreeing to work with the CRTC to remedy its violations, has been able to avoid a sizeable fine. This is good news for businesses that are legitimately attempting to comply with CASL’s requirements.

This being said, the Plentyofffish case demonstrates that the form and substance of the messages which are being sent. If you are not sure if your business is in compliance with the CASL law, you may want to speak to a lawyer who can help you ensure that you are in compliance.

Author

Jonathan MacKenzie

Jonathan MacKenzie is an Associate with Aluvion Law, a law firm providing innovative solutions for entrepreneurs and small businesses. Jonathan has an entrepreneurial background, having started a company to help pay his way through law school. After graduating from the University of Leicester in the UK, Jonathan joined Aluvion Law so that he could leverage both his entrepreneurial streak and his legal acumen.