#CyberFLASH: CASL Enforcement Decision — Sending Messages Without Consent

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On October 26, 2016, the Canadian Radio-television and Tele-communications Commission issued a Compliance and Enforcement Decision finding that Blackstone Learning Corp. violated Canada’s anti-spam legislation (commonly known as “CASL”) by sending commercial electronic messages without consent and imposing a $50,000 penalty.

CASL

CASL creates a comprehensive regime of offences, enforcement mechanisms and potentially severe penalties (including personal liability for employers, corporate directors and officers) designed to prohibit unsolicited or misleading commercial electronic messages (“CEMs”), the unauthorized commercial installation and use of computer programs on another person’s computer system and other forms of online fraud (such as identity theft and phishing).

For most organizations, the key parts of CASL are the rules for CEMs. Subject to limited exceptions, CASL creates an opt-in regime that prohibits the sending of a CEM unless the recipient has given consent (express or implied in limited circumstances) to receive the CEM and the CEM complies with prescribed formalities (including disclosure of contact information and an effective and promptly implemented unsubscribe mechanism) and is not misleading. An organization that sends a CEM has the onus of proving that the recipient gave express or implied consent to receive the CEM.

Violation of CASL’s CEM rules can result in severe administrative monetary penalties (up to $1 million per violation for individuals and up to $10 million per violation for organizations), civil liability through a private right of action (commencing July 1, 2017) and vicarious liability on employers, directors and officers who are unable to establish that they exercised due diligence to prevent the CASL violations. CASL gives the Canadian Radio-television and Tele-communications Commission (“CRTC”) regulatory and enforcement authority regarding CEMs and other matters.

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