On June 29, 2015, the CRTC announced that Porter Airlines Inc had agreed to pay $150,000 as part of an undertaking in respect of alleged violations of Canada's Anti-Spam Law (CASL).
CASL requires consent to send commercial electronic messages to an electronic address unless an exemption applies. CASL also requires commercial electronic messages to clearly or prominently provide an unsubscribe mechanism and also to comply with other very specific informational formalities.
In this case it was alleged that Porter Airlines had sent some commercial electronic messages between July 2014 (CASL came into force July 1, 2014) and April 2015 that were not compliant with CASL. Specifically, the CRTC has alleged that some of the emails did not contain an unsubscribe mechanism and, in other cases, the CRTC alleged that the unsubscribe mechanism was not clearly or prominently set out. It was alleged that some of the emails also did not have the specific prescribed information required by CASL. The CRTC also alleged that Porter Airlines did not honour unsubscribe requests, in some cases, within 10 business days.
When challenged to prove it had consent to send some commercial electronic messages between July 2014 and April 2015 the CRTC reported that Porter Airlines was unable to provide proof as to those consents from each applicable electronic address.
CASL provides a mechanism under which a respondent may give an undertaking to the CRTC. Porter Airlines utilized that procedure and as part of its undertaking is reported to be committed to ensure its going forward communications are compliant with CASL. It is reported that Porter Airlines cooperated with the CRTC and promptly took remedial action to address compliance. Porter Airlines will increase training and education for staff and improve its compliance policies and procedures.
This prosecution shows that the CRTC is targeting technical and other violations under CASL. The prosecution also shows the importance of both the establishment of due diligence as a defense and the importance of being able to provide evidence of consents (or that an exemption applies) to send electronic commercial communications to each account.
The case is a reminder for all organizations that send commercial electronic messages to review their practises, policies and procedures so as best to seek to establish a due diligence defense.
If your organization receives a notice of violation from the CRTC, you may wish to review our recent series of blog posts on defending against a CASL enforcement action.For more information on CASL, please visit our Learning Centre here . Bennett Jones maintains an active CASL practice, and has advised a wide range of businesses and organizations on their compliance obligations under this complex law. If your organization wishes to further understand its CASL obligations, please do not hesitate to contact any of the lawyers noted in our anti-spam practice page.
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