May 2, 2019
In a precedent setting decision, the Canadian Radio-television and Telecommunications Commission (“CRTC”) has fined the President and Chief Executive Officer of a group of businesses for Canada Anti-Spam Law (“CASL”) compliance violations. The CRTC levied a fine against the executive in the amount of $100,000 after an investigation determined that the companies he oversaw committed systematic violations of CASL.
How did the CRTC reach its landmark CASL compliance decision?
July 13, 2017
This month marks a significant milestone for Canada’s Anti-Spam Law (“CASL”), which was passed into law in 2010 and became effective in 2014. CASL, which is widely regarded as the strictest anti-spam legislation in the world, prohibits all commercial electronic messages (“CEMs”) that are sent to or from Canada without proper consumer consent, including e-mail, text, social media, voice and image messages.
How can businesses protect themselves from CASL?
May 31, 2017
What is CASL?CASL[1] was passed into law on December 15, 2010, over the vigorous objection of marketers and business owners, and became effective on July 1, 2014. CASL can best be understood as a two-headed monster, essentially a Canadian hybrid of many of the most onerous provisions of the U.S. Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”) and the Telephone Consumer Protection Act of 1991 (“TCPA”). CASL prohibits all commercial electronic messages (“CEMs”) that are sent to or from Canada without proper consumer consent, including e-mail, text, social media, voice and image messages. Similar to the TCPA, CASL has a strict “opt-in” framework.
Any individual or business entity that sends, or assists in sending, a CEM to a consumer in Canada is subject to CASL. Moreover, any CEM that is sent from, routed to or accessed from a device in Canada is subject to CASL regulations. Corporate officers, directors and agents may be held personally liable if they directed, authorized, acquiesced or participated in the commission of a CASL violation.
CASL provides for either actual damages or statutory damages of $200.00 per each violation, up to a maximum of C$1 million/day for individuals and C$10 million/day for corporate entities. In determining the final amount of statutory damages to award, courts analyze the personal/corporate history of the violator(s), the financial benefit obtained and the nature and scope of the violation(s). Considering that marketing campaigns may involve millions of CEMs, potential damages under CASL may escalate very quickly.
Effective July 1, 2017, CASL will allow individuals to file private and class action lawsuits to collect statutory damages. Because the CASL requirements are so broad, so strict and so easily violated, U.S. marketers that send email or text messages to Canadian residents can expect to see a flood of CASL-specific class action lawsuits. Moreover, CASL drafters did not provide any guidance as to whether the statute will allow for retroactive claims. As such, it is an open question of whether, starting July 1, 2017, plaintiffs can only sue for CEMs sent after that date, or for those messages sent over the prior three years. Regardless of the ultimate answer, we expect class action attorneys to take the aggressive, retroactive approach from day one.
Yes, as can the officers and directors of your company. Canadian class action law firms are no doubt poised to file class action lawsuits against U.S. marketing companies, and to drag them into Canada to defend CASL class action cases. It is also possible that Canadian plaintiffs will join with U.S. class action firms and seek to file claims in jurisdictions where the U.S. business is incorporated or has a principal place of business.
If you are named in a CASL lawsuit, there are many factual and legal defenses that an attorney, knowledgeable and experienced in the nuances of CASL, can help you identify and assert. For example, business-to-business CEMs and those that are purely informational in nature are not subject to CASL regulations. Moreover, no CASL liability should attach where the CEMs are: not intended to be accessed in Canada, provided that the sender conforms to the laws of the target country; sent within six (6) months of receiving a consumer’s request, inquiry or complaint; solely consist of political content; sent to consumers with whom the sender has an existing business relationship; sent to consumers with whom the sender has a familial, personal or other non-business relationship; sent on a one-time basis to consumers referred by a person that has an existing relationship with the sender; etc.
As always, a penny of prevention is worth a pound of cure. If your business or your marketing firm utilizes CEMs, which you almost certainly do, you are at substantial risk that such messages could be routed to or accessed from a device in Canada, which would, thereby, subject you to CASL. Retaining attorneys, knowledgeable and experienced in the nuances of CASL, class action defense, Internet practices and online marketing, who know the red flags that class action law firms look for, could save you substantial time and money, as well as allow you to avoid the distraction of dealing with avoidable litigation.
This topic should be of interest to any company or individual engaging in online marketing.
If you are interested in learning more about this topic, please refer to our CASL white paper and/or feel free to e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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[1] CASL S.C. 2010, ch. 23.
November 2, 2016
The Canadian Radio-television and Telecommunications Commission (“CRTC”) has fined Blackstone Learning Corp. (“Blackstone”) $50,000 for various violations of Canada’s Anti-Spam Law (“CASL”). In the decision, the first of its kind, CRTC determined that Blackstone had violated CASL in connection with sending 400,000 unsolicited commercial email messages without the requisite consent to do so.
How did the CRTC reach its landmark spam-related decision?
March 11, 2015
Last week, the Canadian Radio-television and Telecommunications Commission (“CRTC” or the “Commission”) issued its first Notice of Violation under Canada’s Anti-Spam Law (“CASL”). Canadian corporate training company compu.finder Inc. (“Compu-Finder”) has received a fine of $1.1 million for allegedly sending email without the recipients’ consent or a properly functioning unsubscribe mechanism.
What is CASL, and why is Canada targeting marketers for unsolicited commercial electronic messaging?
CASL became effective in July of last year. The anti-spam law forbids marketers from sending commercial electronic messages (“CEMs”), installing computer programs and/or collecting email addresses using computer programs without obtaining the express consent of consumers. Additionally, CASL prohibits making false or misleading representations in electronic messages and collecting personal information through unauthorized access.
The CRTC, Competition Bureau and Office of the Privacy Commissioner are tasked with enforcing and regulating CASL. These agencies launched an online Spam Reporting Centre so that consumers, businesses and other organizations can report marketers’ unlawful conduct. Organizations that violate CASL risk criminal and civil charges, personal liability for officers and directors and fines of up to $1 million for individuals and $10 million for businesses.
Canada’s new anti-spam law is one of the farthest-reaching and harshest of any country. CASL defines CEMs broadly as any messages that encourage participation in a commercial activity, including email, text messages and instant messaging. These diverse types of electronic messaging are governed by a range of legislation in the United States, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”) and the Telephone Consumer Protection Act (“TCPA”).
The CRTC wasted no time in its enforcement efforts. In the same month as CASL came into effect, the Commission began an investigation of four reported spam violations involving Compu-Finder, from July to September 2014. According to the CRTC, “an analysis of the complaints made to the Spam Reporting Centre of this industry sector shows that Compu-Finder accounts for 26% of all complaints submitted.”
Manon Bombardier, Chief Compliance and Enforcement Officer for the CRTC, alleges that Compu-Finder “flagrantly violated the basic principles of the law by continuing to send unsolicited commercial electronic messages after the law came into force to email addresses it found by scouring websites.” Last Thursday, the Commission issued Compu-Finder a Notice of Violation and $1.1 million fine. Compu-Finder has thirty days to challenge the finding or pay the penalty.
As Compu-Finder’s recent troubles demonstrate, the CRTC has started cracking down on the sending of unsolicited commercial electronic messaging. It is important to also be aware of the fact that a private right of action for CASL violations will come into effect in 2017. Multinational companies, many of which have faced an unprecedented number of class action lawsuits in the United States under the CAN-SPAM Act and TCPA, respectively, should take their CASL compliance seriously.
If you use electronic channels to market your products or services to consumers in Canada, or if you would like to make sure that your marketing practices comply with CASL, contact us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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Related Blog Posts:
New Canada Anti-Spam Legislation (CASL): A Litigation Perspective
Enforcing The Canada Anti-Spam Legislation (CASL) Against U.S. Companies
Perhaps the most frequent question we hear from our clients and readers is whether the Canada Anti-Spam Legislation (“CASL”) can be enforced against U.S. businesses. The short answer is that, depending upon the circumstances, CASL can be enforced not only against U.S. businesses, but their officers, directors and agents as well.
CASL was passed into law on December 15, 2010, and became effective on July 1, 2014, despite the strenuous objection of various business interests. CASL can best be understood as a severe, Canadian hybrid of the U.S. Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”) and the Telephone Consumer Protection Act of 1991 (“TCPA”). CASL prohibits all commercial electronic messages (“CEMs”) that are sent without proper consumer consent, including e-mail, text, social media and image messages. CASL’s strict “opt-in” framework is much more exacting than CAN-SPAM, which regulates the content and form of e-mail messages alone and does so through use of a much more liberal “opt-out” framework.
On its face, CASL states that any individual or business entity that sends or assists in sending a CEM to a consumer in Canada is subject to CASL. Moreover, any CEM that is sent from, routed to or accessed from a device in Canada is subject to CASL regulations. To reiterate, corporate officers, directors and agents may be held personally liable if they directed, authorized, acquiesced or participated in the commission of a CASL violation.
CASL provides for either actual damages or statutory damages of $200.00 per each violation, up to a maximum of C$1 million/day for individuals and C$10 million/day for corporate entities. In determining the final amount of statutory damages to award, courts analyze the personal/corporate history of the violator(s), the financial benefit obtained and the nature and scope of the violation(s). Considering that marketing campaigns may involve millions of CEMs, potential damages under CASL may escalate very quickly.
The Canadian Radio-Television and Telecommunications Commission, the Canadian Competition Bureau and the Office of the Privacy Commissioner of Canada (“Enforcement Agencies”) are all empowered to enforce and issue administrative and monetary penalties for violations of CASL. As set forth below, the Enforcement Agencies can be expected to work closely with the Federal Trade Commission (“FTC”) regarding enforcement.
Yes. For the first three years following its effective date, enforcement will come exclusively through the efforts of the Enforcement Agencies. Such enforcement will most likely be in the form of injunctions, seizure of assets held in or passing through Canada, as well as joint efforts between the Federal Trade Commission and the Enforcement Agencies. Of particular note, in December 2012, President Obama signed into law an extension of the Safe Web Act of 2006 (the “Safe Web Act”). The Safe Web Act allows the FTC to share confidential information in its files with foreign regulators, to conduct investigations and obtain evidence on behalf of its foreign counterparts. It further authorizes foreign staff exchange programs and expenditure on joint projects. By mid-2012, the FTC had provided evidence in response to sixty-three information sharing requests to seventeen foreign law enforcement agencies in nine countries. Since Canada is the U.S.’ most active partner in combating fraud, we can expect substantial cooperation between the FTC and the Enforcement Agencies.
CASL will allow individuals to file private and class action lawsuits to collect statutory damages beginning on July 1, 2017. Because the CASL requirements are so broad, so strict and so easily violated, we expect to see a flood of CASL-specific class action lawsuits. In theory, Canadian plaintiffs can bring class action lawsuits in the state where the U.S. business is incorporated or has a principal place of business, or even in Canada, under the theory that the U.S. business purposely availed itself of jurisdiction in Canada by sending CEMs into Canada. Canadian judgments can (assuming proper personal and subject matter jurisdiction existed in the underlying action) generally be enforced in the U.S. pursuant to the Uniform Foreign Money Judgments Recognition Act.
As always, a penny of prevention is worth a pound of cure. If you or your marketing partners utilize CEMs, you are at substantial risk that such messages could be routed to or accessed from a device in Canada, which would thereby subject you to CASL. Retaining a law firm that is knowledgeable and experienced in the nuances of CASL, Internet practices and online marketing in general, that can point out the red flags that enforcement agencies and class action law firms look for, could save you substantial time and money, as well as allow you to avoid the distraction of dealing with a regulatory inquiry or action in the first place.
This topic should be of interest to any company or individual engaging in online marketing.
If you are interested in learning more about this topic, please refer to our CASL white paper and/or feel free to e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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What is Canada’s Anti-Spam Legislation (“CASL”)?
CASL was passed into law on December 15, 2010, over vigorous objection by various business interests, and became effective on July 1, 2014. CASL can best be understood as a draconian, Canadian hybrid of the U.S. Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”) and the Telephone Consumer Protection Act of 1991 (“TCPA”). CASL prohibits all commercial electronic messages (“CEMs”) that are sent without proper consumer consent, including e-mail, text, social media and image messages. As such, CASL has a strict “opt-in” framework. By contrast, CAN-SPAM regulates the content and form of e-mail messages and does so through use of a much more liberal “opt-out” framework.
Any individual or business entity that sends, or assists in sending, a CEM to a consumer in Canada is subject to CASL. Moreover, any CEM that is sent from, routed to or accessed from a device in Canada is subject to CASL regulations. To reiterate, corporate officers, directors and agents may be held personally liable if they directed, authorized, acquiesced or participated in the commission of a CASL violation.
CASL provides for either actual damages or statutory damages of $200.00 per each violation, up to a maximum of C$1 million/day for individuals and C$10 million/day for corporate entities. In determining the final amount of statutory damages to award, courts analyze the personal/corporate history of the violator(s), the financial benefit obtained and the nature and scope of the violation(s). Considering that marketing campaigns may involve millions of CEMs, potential damages under CASL may escalate very quickly.
The Canadian Radio-Television and Telecommunications Commission, the Canadian Competition Bureau and the Office of the Privacy Commissioner of Canada (“Enforcement Agencies”) are all empowered to enforce and issue administrative and monetary penalties for violations of CASL. Although there has been an enormous outcry for the Enforcement Agencies to focus on educating businesses, rather than enforcement, for the first year after enactment, the Enforcement Agencies have given no indication that they intend to suspend enforcement efforts.
Yes, and as detailed above, so can the officers and directors of the company. For the first three years following its effective date, enforcement will come exclusively through the efforts of the above-referenced Enforcement Agencies. Such enforcement will most likely be in the form of injunctions, seizure of assets held in or passing through Canada, as well as joint efforts between the Federal Trade Commission and the Canadian Enforcement Agencies. Of course, nothing prevents the Enforcement Agencies from filing suit in Canada against U.S. businesses that are directing CEMs into Canada, or otherwise doing business in Canada.
CASL will allow individuals to file private and class action lawsuits to collect statutory damages, beginning as of July 1, 2017. Because the CASL requirements are so broad, so strict and so easily violated, we expect to see a flood of CASL-specific class action lawsuits. In theory, Canadian plaintiffs can bring class action lawsuits in the state where the U.S. business is incorporated or has a principal place of business, or even in Canada, under the theory that the U.S. business purposely availed itself of jurisdiction in Canada by sending CEMs into Canada.
If you are named in a CASL lawsuit, there are many factual and legal defenses that counsel knowledgeable and experienced in the nuances of CASL can help you identify and assert. For example, business-to-business CEMs and those that are purely informational in nature are not subject to CASL regulations. Moreover, no CASL liability should attach where the CEMs are: not intended to be accessed in Canada, and conform to the laws of the target country; sent within six (6) months of receiving a consumer’s request, inquiry or complaint; solely consist of political content; sent to consumers with whom the sender has an existing business relationship; sent to consumers with whom the sender has a familial, personal or other non-business relationship; sent on a one-time basis to consumers referred by a person that has an existing relationship with the sender; or sent to consumers based on the authorization of a third party that has already secured the consumers’ consent.
As always, a penny of prevention is worth a pound of cure. If you or your marketing partners utilize CEMs, you are at substantial risk that such messages could be routed to or accessed from a device in Canada, which would thereby subject you to CASL. Retaining counsel that is knowledgeable and experienced in the nuances of CASL, Internet practices and online marketing, who know the red flags that enforcement agencies and class action law firms look for, could save you substantial time and money, as well as allow you to avoid the distraction of dealing with a regulatory inquiry or action.
This topic should be of interest to any company or individual engaging in online marketing.
If you are interested in learning more about this topic, please refer to our CASL white paper and/or feel free to e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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Despite the fact that Canada’s Anti-Spam Law (“CASL”) was enacted almost three (3) years ago, its implementing regulations just went into effect on July 1, 2014.
In comparison to the CAN-SPAM Act, CASL is a much more restrictive law, encompassing a wider variety of communications. While the CAN-SPAM Act only targets communications sent via e-mail, CASL regulates any electronic message delivered in connection with a commercial purpose, whether or not the person who transmits the message does so with the expectation of earning a profit. This includes almost all messages sent electronically, including e-mail, text messages and social media messages that endeavor to communicate, market or sell products and/or services to Canadians.
Most importantly for our readers is the fact that CASL’s regulations apply to all commercial electronic messages (“CEM”) received within Canada, regardless of where they are sent from. This means that United States marketers could be held liable for CASL violations.
We have written extensively about the CAN-SPAM Act and its consent requirements. In this post, we highlight the fact that the consent requirements under CASL differ significantly from those of CAN-SPAM. In contract to CAN-SPAM, which simply requires consumers to “opt-out” of receiving commercial e-mails, CASL restricts the sending of any CEMs, unless consumers have “opted-in” to receiving the CEMs and provided their CASL-compliant express or implied consent.
Express consent under CASL must be clearly and simply indicated. Those seeking to gain express consent must make clear to the recipient the full corporate names of the entities seeking consent, including their mailing addresses and either a contact telephone number, email address or web address. Additionally, the consent language must include a statement informing the recipient that he/she can withdraw consent at any time by using the contact information provided.
As a best practice, it is recommended that entities seeking consent ensure that consumers indicate their consent by taking some type of affirmative action, such as entering their e-mail addresses or phone numbers or checking an unpopulated box adjacent to the consent language. Proof of consent should be maintained for a minimum of three (3) years to avoid liability under CASL.
Consent under CASL will be implied under three (3) circumstances:
Due to enforcement implications that can extend outside the borders of Canada, businesses that conduct e-mail, text message and/or social media marketing throughout North America should take heed of CASL’s regulations.
If you are interested in learning more about this topic, please refer to our CASL white paper and/or feel free to e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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