Another CASL fine assessed

This week the Canadian Radio-television and Telecommunications Commission (CRTC) announced a $50,000 fine against Blackstone Learning Corp. for violations of CASL.
gavel
In early 2015, the CRTC identified over 380,000 emails sent without the consent of recipients and fined Blackstone $640,000. Blackstone appealed the ruling and the Commission lowered the fine to $50,000.
I strongly recommend folks who are interested in how the CRTC is enforcing CASL read the full release. In it, the CRTC walks us through the process of investigation. In this case, Blackstone argued that they had implied consent based on the public nature of the recipients email addresses and the fact they’re published on different websites. The commission disagreed.

23. Paragraph 10(9)(b) of the Act does not provide persons sending commercial electronic messages with a broad licence to contact any electronic address they find online; rather, it provides for circumstances in which consent can be implied by such publication, to be evaluated on a case-by-case basis. Pursuant to section 13 of the Act, the onus of proving consent, including the elements of implied consent under paragraph 10(9)(b) of the Act, rests with the person relying on it. Various publications on both the Commission’s website4 and on the Department of Industry’s web page related to the Act5 stress the importance of detailed and effective record-keeping for this reason.
24. The notice to produce issued to Blackstone required it to produce information with respect to how it obtained consent, whether express or implied, to send commercial electronic messages. Blackstone did not respond to this notice, despite a Commission decision requiring it to do so.

There was a question at the EIS conference that was similar. An audience member asked (very roughly paraphrased) why do marketers have to comply with this and other companies don’t. A panel member responded that they did, but turned the question around and asked how the audience member would justify not complying. The conversation went on, but the thing that struck me was that the onus was on the audience member and on the sender to prove compliance or defend their lack of compliance. The same thing occurred to me reading the CRTC findings. The CRTC is looking for folks to do the right thing, or give them a good argument as to why the rules don’t apply.
I see a lot of people arguing against CASL, against it’s overreach and against the underlying rules. But everything I’ve seen in how the CRTC is enforcing CASL is that they’re taking a thoughtful approach. Even in this case, where the reports says “Blackstone did not cooperate with the investigation” the CRTC still attempted to work with the company. In fact, they even lowered the fine to less than 10% of the original amount. As they say:

As stated in the Act, the purpose of a penalty is to promote compliance with the Act, and not to punish. To this end, the penalty set out in the notice of violation places great emphasis on the principle of general deterrence. The Commission accepts that this is a valid principle to be considered in the imposition of an AMP, but considers that the specific circumstances of Blackstone’s case, and the violations that have taken place, require a lower AMP.

This is probably the 4th or 5th enforcement action I’ve seen the CRTC take. None of those showed any evidence of government overreach or business ending fines, something CASL detractors have been saying will happen. In fact, many actions involved no fines and even in the case where the fine was over $600,000 and the company didn’t cooperate, the CRTC lowered the fine based on an appeal.
CRTC enforcement actions have not brought email marketing in Canada to a screaming halt. But have made email better for Canadians. I call that a win.

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What do you think about these hot button issues?

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A few different things I read or saw brought out the rants this week. Some of these are issues I don’t have answers to, and some of them are issues where I just disagree with folks, but have nothing more useful to say than, “You’re wrong.” I don’t even always have an answer to why they’re wrong, they’re just wrong.
I thought today I’d bring up the issues that made me so ranty and list the two different points of views about them and see what readers think about them. (Those of you who follow me on Facebook probably know which ones my positions are, but I’m going to try and be neutral about my specific positions.)

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Another CASL fine

The Canadian Radio-television and Telecommunications Commission (CRTC) announced today that Porter Airlines had agreed to pay a fine of $150,000 for violations of the Canadian Anti-Spam Law (CASL).
After investigating the airline, CRTC found multiple violations of the statute. These violations include no unsubscribe link or the unsubscribe link was not prominent enough.
Some of the messages at issue failed to have proper identification. Finally, Porter Airlines couldn’t prove consent for at least some subset of the subscribers.
This is another in a series of enforcement actions where CRTC fined companies for violations of CASL. But none of those enforcement actions really seem overly punitive. There were multiple people publicly concerned about CRTC aggressively fining companies and even driving them out of business. These concerns now appear to be unfounded. Certainly, CRTC is enforcing the law but in a way to help companies come into compliance with it.
Another major concern some individuals had was the private right of action under CASL. I recently attended a conference where one of the talks was related to CASL and enforcement. What was said there is that there are some constraints on bringing a case. For instance cases can’t be brought in lower courts, they have to be brought in the provincial (I think) courts. This puts an additional burden on plaintiffs. Reading between the lines, my impression was this was intended by the regulatory agency and lawmakers to stop nuisance type suits, but allow for real action when needed.
Finally, I have yet to hear about any enforcement action that resulted in fines for corporate officers rather than the corporation as an entity.
All in all, the chicken littles claiming that this law was going to drive email marketers out of business seem to have been wrong. In fact, when I asked a question during the session “have you heard of any companies stopping marketing in Canada due to CASL” the first response was a scoff. This was not the purpose or intent of the law, and it doesn’t appear to be enforced that way.

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