Canada’s Anti-Spam Legislation (“CASL”) Enforcement Update

May 8, 2015 | Gillian Tuck Kutarna

Two recent decisions by the CRTC have prompted us to include a CASL update for the education sector in this month’s newsletter.

In March of this year, the CRTC fined Compu-Finder $1.1 million for three instances of sending Commercial Electronic Messages (CEMs) to recipients advertising professional development courses without the recipients’ consent, and one instance of sending CEMs without a functioning unsubscribe mechanism, contrary to legislative requirements.

Also in March, Plentyoffish Media Inc., an online dating service, agreed to pay a $48,000.00 fine in response to the CRTC’s allegation that it sent CEMs which contained an unsubscribe mechanism that was not set out ‘clearly and prominently’ and was not able to be ‘readily performed’, as required by CASL and its regulation. Plentyoffish has also agreed to implement a compliance program to remedy the deficiencies identified by the CRTC.

CASL allows for monetary penalties against a corporation of up to $10 million per violation. In the face of over 100,000 complaints to date, the CRTC has stated it will focus its energy on the most severe violations Not surprisingly, for-profit corporations rather than not-for-profit corporations have received the first fines. Nevertheless, it is prudent for school boards, councils and foundations to ensure they can demonstrate due diligence in adhering to CASL requirements, both for the sake of modelling statutory compliance as community leaders, and in order to minimize liability for any inadvertent errors.

CASL’s prohibition against sending CEMs without the express or implied consent of the recipient, and without the prescribed content, took effect July 1, 2014.

As we noted in our newsletter article of March, 2014, CASL calls for an analysis of the content of the message, rather than the purpose or characterization of the sender. A message is considered commercial if one or more of its purposes is to encourage participation in a commercial activity, regardless of whether or not there is an expectation of a profit. Therefore an invitation by a school or school council to purchase goods and services such as food, field trip, travel or photographs, or to respond to an RFP, would be captured by this Act if sent electronically.

Miller Thomson can assist with a “CASL Audit”, including drafting requests for consent, and addressing other CASL compliance concerns.

We would also like to invite readers to register for our upcoming Morning Recess webinar, at 10:00 on May 21. Dirk Van de Kamer will be discussing the implications of some recent labour cases for the education sector.

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

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