On March 25, 2015, the CRTC announced that online dating site operator Plentyoffish Media Inc. has entered into an undertaking and paid the CRTC $48,000 for an alleged violation of Canada’s anti-spam legislation (CASL).
The CRTC commenced an investigation of Plentyoffish in response to complaints alleging the site sent commercial emails to its registered users with an unsubscribe mechanism that was not clearly and prominently set out and readily performable. The emails notified users of various services Plentyoffish offers through its dating site. The violation allegedly occurred between July 1, 2014 and Oct. 8, 2014.
According to the CRTC’s Chief Compliance and Enforcement Officer, the case is an important reminder that organizations must review their commercial electronic message unsubscribe mechanism to ensure it is clearly and prominently set out and can be readily performed.
This announcement comes just three weeks after the CRTC issued its first Notice of Violation under CASL. Under that Notice of Violation, the CRTC issued a penalty of $1.1 million against Compu-Finder for allegedly sending unsolicited commercial electronic messages, as well as messages in which the unsubscribe mechanism did not function properly. In response to the Notice of Violation, Compu-Finder was given options to pay the fine, submit written representations to the CRTC with respect to the Notice of Violation, and/or request an undertaking be entered into with the CRTC on the matter.
In the case of Plentyoffish, the enforcement lead to an undertaking without a Notice of Violation being issued. This appears to have resulted from Plentyoffish taking prompt steps to cease the infringing behaviour. The CRTC stated that it appreciated Plentyoffish changing its practices once it became aware of the problem by updating its unsubscribe mechanism to comply with CASL.
The undertaking Plentyoffish has entered into with the CRTC goes beyond the $48,000 payment. Plentyoffish has also undertaken to develop and implement a program to ensure that is activities are compliant with CASL. The compliance program must include staff training and education and the development of corporate policies and procedures with respect to CASL compliance.
The CRTC has a broad spectrum of enforcement tools under CASL, including warning letters, preservation demands, notices to produce, restraining orders and notices of violation. In addition, the CRTC may discuss corrective actions with the alleged CASL violator, which may lead to that person and the CRTC entering into an undertaking. Such undertakings may include, as in the Plentyoffish case, the payment of monies and other corrective measures.
In addition to the enforcement of CASL by the CRTC, individuals will have a private right of action under CASL starting on July 1, 2017. This will permit individuals to apply to Court for an order awarding them actual damages suffered from a violation of CASL along with statutory damages. Statutory damages may be awarded by the Court in amounts up to $1,000,000 for each day on which a CASL contravention occurred.
It is important to note that no statutory damages may be awarded under CASL’s private right of action where the defendant has received a Notice of Violation from the CRTC or where the defendant has entered into an undertaking with the CRTC. As a result, entering into an undertaking with the CRTC may be an effective means for CASL violators to limit their related costs as they remedy any past CASL violations.
Of course, prevention is the best policy. The following tips for CASL compliance are apparent from the Plentyoffish case:
- Review your organization’s commercial electronic message mechanisms to ensure they are CASL compliant. Your unsubscribe mechanism must be clear, prominent and readily performable, and must satisfy CASL’s other requirements.
- Ensure your organization has implemented robust CASL policies and procedures.
- Carry out a staff CASL training program.
- Upon becoming aware of CASL non-compliance, take immediate action to rectify the deficiency and consider entering into a related undertaking with the CRTC.
The CRTC has stated that is it assessing all complaints submitted to its Spam Reporting Centre that fall within the CRTC’s mandate and that, as a result, a number of investigations are underway. We expect more notices of CASL enforcement actions to follow.