This week the Canadian Radio-television and Telecommunications Commission (CRTC) announced a $50,000 fine against Blackstone Learning Corp. for violations of CASL.
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.