In its most recent action (see our discussion of the earlier Compu-Finder action and the Plentyoffish action) under Canada’s Anti-Spam Legislation (the “Act” or “CASL”)1, the Canadian Radio-television and Telecommunications Commission (the “CRTC”) has grounded Porter Airlines Inc. (“Porter”) for alleged violations of paragraphs 6(1)(a), 6(2)(b) and 6(2)(c) and alleged non-compliance with paragraph 11(1)(b) and subsection 11(3) of the Act, as well as alleged non-compliance with subsection 2(2) and section 3 of the Electronic Commerce Protection Regulations (CRTC), SOR/2012-36 (the “CRTC Regulations”).
In this case, Porter allegedly sent unsolicited commercial electronic messages that failed to comply with the provisions under the Act and its regulations relating to unsubscribe mechanisms, the provision of prescribed contact information and the requirement to obtain consent before sending commercial electronic messages.
A news release issued by the Government of Canada indicated that Porter was cooperative and immediately took corrective actions to comply with CASL once made aware of the CRTC’s investigation2. As part of its June 26 undertaking with the CRTC, Porter agreed to comply with CASL by improving its existing compliance program and to ensure any third party authorized to send commercial electronic messages on its behalf also complies with CASL. Nevertheless, the CRTC assessed a monetary penalty of $150,000 against Porter.
Of particular note, some commercial electronic messages sent by Porter contained two unsubscribe links, one of which did not function properly. As a result, the CRTC concluded, as set-out in the undertaking, that the unsubscribe mechanism was not “clearly and prominently” set out as required by section 3 of the CRTC Regulations as “it was not apparent which mechanism was functional”. This is a significant development but assists only marginally in establishing what the CRTC considers “clear and prominent”. In its Compliance and Enforcement Information Bulletin CRTC 2012-548: Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC) (the “Guidelines”), the CRTC established its guidelines on the interpretation of the CRTC Regulations and noted that for an unsubscribe mechanism to be “readily performed” it must “be accessed without difficulty or delay, and should be simple, quick, and easy for the consumer to use.”
CRTC Chief Compliance and Enforcement Officer, Manon Bombardier, further noted that “[t]his case is an important reminder that to be fully compliant with the law, proof of consent is required for each electronic address. Some businesses are under the mistaken impression that they are compliant with the law by relying on general business practices or policies as proof of consent for the majority of the electronic addresses to which they send their commercial emails. This is simply not the case.”2
While the undertaking signals the import that the CRTC places on proof of consent, it offers limited guidance on what is satisfactory to discharge this obligation and it will likely be left to the Courts3 to provide fuller interpretation of what is reasonable and acceptable. While the Guidelines note that the CRTC “considers that the requirement for consent in writing is satisfied by information in electronic form if the information can subsequently be verified” and that
“examples of acceptable means of obtaining consent in writing include checking a box on a web page to indicate consent where a record of the date, time, purpose, and manner of that consent is stored in a database; and filling out a consent form at a point of purchase”,
the guidance for oral consent is not necessarily practical, noting simply that the CRTC
“considers the following forms as sufficient to discharge the onus of demonstrating oral consent: where oral consent can be verified by an independent third party; or where a complete and unedited audio recording of the consent is retained by the person seeking consent or a client of the person seeking consent.”
What is certain is that there is likely to be more turbulence up ahead as parties strive to be compliant with the strictures of CASL.
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Porter Airlines Inc. Hits Turbulence: Enters Into Undertaking With CRTC for Non-Compliance With CASL
For questions on Canadian intellectual property law, including Canada’s evolving anti-spam regime, acquiring, registering, transferring or licensing trade-marks and copyrights, or other aspects of Canadian intellectual property law, please contact Kristen Murphy, Athar Malik, or another member of Cox & Palmer’s Intellectual Property & Technology team.
1Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23.
3 Beginning on July 1st 2017, the provisions of the Act respecting private rights of action come into force which will allow those affected by an act or omission that is in contravention of the Act to bring a court action against individuals and organizations whom they allege have violated the Act, allowing an applicant to seek actual and statutory damages.