In the United States, the federal CAN-SPAM Act sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out penalties for violations. Standing is provided only to web service providers (ISP) and government enforcers. State anti-SPAM legislation also exists, perhaps the most prevalent being California’s anti-SPAM law (Bus. & Prof. C. 17529.5).
California’s anti-SPAM law generally permits individuals, not just web service providers, to sue for statutory damages of up to $1,000, per email. The legislation contains three categories of unlawful spam email that give rise to liability for both advertisers and senders of commercial emails.
Many other countries (e.g., Europe and some countries in Asia) also prohibit sending non-consensual marketing communications.
On October 26, 2016, the Canadian Radio-Television and Telecommunications Commission announced its first compliance and enforcement decision for violation of Canada’s anti-SPAM legislation. Until now, enforcement actions took the form of stipulated, confidential settlements.
The decision provides guidance on the consent requirement and CASL compliance leading up to the opening of class action enforcement in July 2017.
By way of background, CASL became effective in July 2014 and outlines a robust, stringent set of rules, prohibitions and penalties pertaining to unsolicited or misleading commercial electronic messages. CEMs are broadly defined and are not limited to email communications. CEMs must comply with specifically enumerated substantive requirements (e.g., unsubscribe mechanisms, disclosures, etc.) and recipients must provide consent to receive such messages.
Potential monetary penalties are severe and employers, directors and officers that are unable to establish preemptive due diligence can be held vicariously liable.
In the decision, the CRTC found that Blackstone committed nine violations of CASL in the summer of 2014 by sending more than 300,000 CEMs in nine campaigns without consent. An investigation was commenced following numerous complaints to the CRTC. A notice of violation imposing an administrative monetary penalty of CA$640,000 was subsequently issued.
Blackstone contested the notice of violation, asserting that it had implied consent from the recipients to send the CEMs because the email addresses were publicly available. The CRTC rebuffed Blackstone’s argument, in part, because there was no prior or existing relationship between Blackstone and the recipients.
Ultimately, the administrative monetary penalty was reduced CA$50,000 in consideration of Blackstone’s prior good faith attempts to self-police, the lack of guidance on the issue of implied consent in 2014, the short duration of the violations and the absence of prior violations.
Liability for CASL violations may be lessened if preventative due diligence is established. Thus, the Blackstone matter provides a few critical takeaways – the CRTC will aggressively investigate complaints and implied consent is strictly construed. U.S. – based companies must ensure compliance with CASL when sending CEMs to email addresses in Canada.
Contact an experienced FTC defense attorney and advertising compliance lawyer with any questions regarding the similarities and differences between U.S. anti-SPAM legislation and CASL. Given the impending opening of class action enforcement, this matter should be of particular interest to corporate counsel interested in designing and implementing written compliance policies and protocols.
Richard B. Newman is an Internet law, online marketing compliance, telemarketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing and defending clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, complex commercial litigation defense, SPAM law compliance and litigation defense, intellectual property transactional and litigation matters, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.
HINCH NEWMAN LLP. ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result.