The Power of Perspectives

The Canadian Bar Association

Michael Osborne

Standard of perfection: CRTC’s enforcement of Canada’s anti-spam law

December 15 2015 15 December 2015

Rogers Media Inc. recently agreed to pay $200,000 for allegedly violating Canada’s Anti-Spam Law (CASL). In June, Porter Airlines Inc. agreed to pay $150,000, and in March, Plentyoffish Media Inc. agreed to pay $48,000, for similar alleged violations. These recent enforcement actions show that the CRTC has adopted a tough approach to CASL compliance. CASL applies to every business and individual that uses emails for any commercial purpose. Failure to meet a standard of perfection, or near perfection, can result in CRTC enforcement action, including “administrative monetary penalties” (AMPs) of up to $10 million.

The failings that the CRTC alleged provide a handy catalogue of pitfalls that businesses that send emails face:

No proof of consent: CASL makes it unlawful to send a “commercial electronic messages” (CEM) without consent, which can be either express or implied. Importantly, the sender must be able to prove that it has consent. Porter was unable to prove that it had consent for all of the emails it sent, according to the CRTC.

Missing unsubscribes: CASL requires that all CEMs contain an unsubscribe mechanism. The CRTC expects it to be set out “clearly and prominently” and able to be readily performed. Porter sent emails that were either missing the unsubscribe mechanism, or had one that was not clear and prominent, the CRTC alleged. Some of Porter’s emails contained two unsubscribe links, one of which did not work. Even though the other link did work, the CRTC faulted Porter because it was not apparent which one worked. Plentyoffish’s unsubscribe mechanism also was not “clearly and prominently” set out, the CRTC said.

Unsubscribes that don’t work: Rogers sent emails with an unsubscribe mechanism that did not function properly, according to the CRTC. In some cases, the address used to unsubscribe was not valid for the minimum 60 days.

Failing to honour unsubscribes: both Rogers and Porter failed to honour some unsubscribe requests within the ten business days mandated by CASL, the CRTC alleged.

Missing contact information: Porter failed to include complete contact information as required by CASL and the CRTC’s regulations, according to the CRTC.

While these three cases appear to show a low tolerance by the CRTC for errors, they also illustrate how business can avoid the worst outcomes by cooperating with the CRTC. Rogers cooperated fully with the CRTC. All three took steps to remedy the situation and improve their compliance with CASL. The result was that these three companies were able to settle with the CRTC by agreeing to an undertaking and a voluntary payment, thus avoiding the possibility of an AMP, which could have been as much as $10 million.

These three cases also provide an important wake-up call for all Canadian business owners. Canada’s anti-spam law, which is among most restrictive in the world, is being aggressively enforced by the CRTC. Since CASL came into force on July 1, 2014, the CRTC has collected $1.5 million in AMPs and undertakings. The CRTC even solicits reports from the public through its online “Spam Reporting Centre” at If two highly sophisticated companies, Rogers and Porter, were not able to achieve the standard of perfection (or near perfection) that the CRTC expects, then it is likely that many other Canadian businesses, large and small, would fall short.

Lawyers who advise businesses should ensure that their clients are aware of CASL and help them to comply with its requirements. Fortunately, many excellent resources are only a Google search away. Many firms have published materials on CASL, including my own. The Canadian Chamber of Commerce has a page of CASL resources, which includes a detailed “Anti-Spam Toolkit” for businesses to use, by Barry Sookman of McCarthy Tétrault. The CRTC itself also provides guidance for businesses on its website.



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