CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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On March 29, 2021, the Canadian Radio-television and Telecommunications Commission (CRTC) announced that it had imposed the largest Canadian anti-spam law (CASL) penalty to date to an individual for sending commercial electronic messages (CEMs) without consent (see: CRTC issues largest ever penalty to an individual for sending messages without consent. See also: Notice of Violation: Scott William Brewer).
In its news release, the CRTC said that it had imposed a penalty of $75,000 on Scott William Brewer for allegedly sending hundreds of thousands of CEMs without prior consent. More specifically, the CRTC found that over 670,000 e-mails were sent, without any consent, in relation to affiliate and web marketing for four online casinos during a so-called “hailstorm spam campaign” (i.e., where a very high volume of e-mails is sent during a short time frame before anti-spam defenses can respond and block the messages). Failing to adequately request and document consent (whether express or implied under CASL) is one of the most common CASL compliance errors we see in our practice (for more information, see: Canadian Anti-Spam Law Compliance Errors).
The CRTC also found that the sender used alias e-mail addresses, which it was able to attribute to the sender. Other evidence of non-compliance included several mailing lists and millions of records of failed e-mail delivery attempts. (With respect to the use of third-party e-mail lists, this is not prohibited per se by CASL, though users need to ensure that the company or individual that provided the list has consent for the recipients, including for use by third parties.)
The potential penalties under CASL for senders of CEMs who cannot prove either express or implied consent (or an applicable exemption) are $10 million (for corporations) and $1 million (for individuals). In addition, CASL includes an aiding and abetting type provision, which provides that it is also prohibited to “aid, induce, procure or cause to be procured” the sending of unsolicited CEMs without consent (section 9) and also imposes director and officer liability on officers, directors or agents that direct, authorize, assent to, acquiesce in or participate in the commission of a violation (section 31).
As such, individuals can (and in a number of cases have) be personally liable under CASL where they either personally send CEMs without consent themselves or assist in the unauthorized sending of CEMs as provided in sections 9 and 31 of CASL. For the CRTC’s position on section 9 of CASL, see: Compliance and Enforcement Information Bulletin CRTC 2018-415: Guidelines on the Commission’s approach to section 9 of Canada’s anti-spam legislation (CASL).
Also, under section 13 of CASL, senders have the onus of proving that consent was obtained (either express or implied consent). In this respect, the CRTC recommends that senders maintain the following records: (i) all evidence of express consent (e.g., forms); (ii) CEM recipient consent logs; (iii) all unsubscribe requests and actions; and (iv) evidence of actioning unsubscribe requests for CEMS (see: Compliance and Enforcement Information Bulletin CRTC 2014-326). In this case, the CRTC found no evidence of any consent obtained by the sender.
Canadian Anti-Spam Law (CASL) Resources
For more information about Canadian federal anti-spam law (CASL), see: Canadian Anti-Spam Law (CASL), Anti-Spam Law (CASL) FAQs, Common Anti-Spam (CASL) Compliance Errors and Contests & CASL.
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SERVICES AND CONTACT
I am a Toronto competition/antitrust lawyer and advertising/marketing lawyer who helps clients in Toronto, Canada and the US practically navigate Canada’s advertising and marketing laws and offers Canadian advertising/marketing law services in relation to print, online, new media, social media and e-mail marketing.
My Canadian advertising/marketing law services include advice in relation to: anti-spam legislation (CASL); Competition Bureau complaints; the general misleading advertising provisions of the federal Competition Act; Internet, new media and social media advertising and marketing; promotional contests (sweepstakes); and sales and promotions. I also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers, drip pricing, astroturfing and native advertising.
For more information about my services, see: services
To contact me about a potential legal matter, see: contact
For more regulatory law updates follow me on Twitter: @CanadaAttorney
