eCaseNote 2017 No. 04 May 23, 2017 / eCasenote

Spammers Beware: A Private Right of Action is Around the Corner

Canada Anti-Spam Legislation, SC 2010, c 23

What is Canada’s Anti-Spam Legislation?
Canada’s Anti-Spam Legislation (CASL) is intended to protect Canadians from the harmful effects of spam—commercial electronic messages—while at the same allowing Canadian businesses to use electronic messaging for legitimate purposes. CASL defines a commercial electronic message broadly as an electronic message sent with the intention of encouraging participation in commercial activity. A commercial electronic message could come in the form of an email, text, Tweet, Facebook post, or any other electronic message.

In effect, CASL prohibits the sending of commercial electronic messages unless (1) the recipient consents to receiving the message, (2) the message includes the identity and contact information of the person and company sending the message, and (3) the message includes an unsubscribe mechanism.

What are the Penalties for Non-Compliance with CASL?
Currently, the administrative penalties for non-compliance with CASL are severe: the maximum penalty is $1,000,000 for an individual and $10,000,000 for a corporation. Multiple Canadian businesses have paid hundreds of thousands of dollars in penalties for non-compliance.

Starting July 1st of this year, the legislation’s personal right of action will come into effect. This opens Canadian businesses up to even greater exposure to non-compliance penalties. The personal right of action allows a person who has received a non-compliant commercial electronic message to apply to a court for relief. The court may order the business to compensate the recipient for any loss suffered as a result of the commercial electronic message and a maximum of $1,000,000 for each day on which a contravention occurred.

The exact penalty will vary on a case-by-case basis. In determining the amount payable under a personal right of action, the court must consider: the purpose of the order, the nature and scope of the contravention, the business’s history of similar contraventions, financial benefit received as a result of the contravention, ability to pay, and any other relevant factor.

The personal right of action also creates personal liability for officers, directors, agents and mandataries of a corporation who participated in the commission of the violation. (A mandatary is any person with a mandate to act on behalf of a corporation.)

How Does CASL Define “Consent”?
Consent to receive commercial electronic messages can be express or implied.

The legislation states that a business seeking express consent must clearly set out (1) the purpose of the consent, and (2) information that identifies the business seeking the consent. Express consent may be given orally or in writing and is valid until the recipient withdraws consent.

There are three ways to give implied consent. First, a business has implied consent to send a commercial electronic message if there is an existing business relationship with the recipient. An existing business relationship exists if the sender and receiver have carried out a transaction in the past two years. An existing business relationship may also exist if the receiver of the message has made a business inquiry in the past six months. Second, consent is implied consent is implied if there is an existing non-business relationship with the recipient. For example, a registered charity, political party, or a not-for-profit association may send a commercial electronic message to a donor, volunteer, or member. Third, consent is implied if the recipient has conspicuously published his or her electronic address. For example, in exchanging business cards containing email addresses, two businesspeople impliedly consent to the receipt of commercial electronic messages from the other. Another exampe of conspicuous publication is the inclusion of an electronic address in a business’s website, advertisement or other public venue.

It is the responsibility of the sender of a commercial electronic message to prove that they had the consent to do so. This means that businesses should be proactive and diligent in keeping records of consent.

Counting Down to July 1st . . .
CASL’s personal right of action will come into effect on July 1st. As class action lawyers across the country count down the days, Canadian businesses and organizations should review their commercial electronic messaging policies to ensure compliance.

The comments contained in this eCaseNote provide general information only and should not be construed as legal advice or opinion. For more information or specific advice on matters of interest, please call our offices at (709) 579-2081.