A recent enforcement decision from the Canadian Radio-television and Telecommunications Commission (CRTC) dealing with Canada’s anti-spam legislation (CASL) may be helpful to financial advisors and their small business owner clients who send marketing email and find themselves in contravention of the act.
The decision earlier this month imposed an “administrative monetary penalty” (AMP) of $15,000 on William Rapanos in relation to three email campaigns in 2014. Specifically, Rapanos sent the emails to help promote his small design and printing business for commercial flyers.
There were 50 complaints about the “commercial electronic messages” (CEM) that the business sent, with the CRTC finding that there had been 10 violations of CASL. Those violations were: lack of consent by the recipients to receive the CEMs; lack of information about the sender’s identity or contact info; and lack of an unsubscribe procedure.
Rapanos disputed the allegations, saying he did not send the emails. He also raised a defence under the Canadian Charter of Rights and Freedoms, alleging that the burden of proof on the CRTC amounts to the same burden as in a criminal offence — beyond a reasonable doubt.
However, the decision states that Rapanos was responsible for the emails because they came from an Internet connection at his home address and, further, that the Charter burden of proof section does not apply to CASL because offences under that legislation are not criminal.
Read: Checking in on CASL
Advisors or clients who are business owners and have concerns about CASL may also want to review points made in the decision about the imposition and size of the penalty in this case:
> Deterrence, not punishment. The goal of the AMP is to deter further violations of the act without amounting to a punishment that makes future compliance difficult or impossible, the decision states. In other words, the goal is not to put owners out of business.
> Indifference. The CRTC found that Rapanos was indifferent to whether the violation had occurred and the nuisance it may have caused.
> Lack of co-operation with the investigation. Rapanos’ incomplete response to requests for information was a factor in the size of the AMP.
> Ability to pay. Assertions that the sender cannot pay the AMP (as Rapanos claimed) must be supported to be meaningful.
> Self-correction. Rapanos continued to send the emails after he was aware of the investigation, denied he was involved in the email campaign and blocked investigators from speaking with others who might have knowledge of the campaign.
> Prior violations. Rapanos had no previous history of CASL violations.
Although it may at times be difficult to decide if an email falls within the definition of a CEM as defined in CASL, the decision includes a description of the emails that provoked the complaints that led to this investigation.
“Each of the messages used identical or similar language, offering and promoting marketing design and commercial services, providing price quotes for different volume increments, and directing recipients to a website for further information,” the decision notes. “The messages were sent to each of the complainants’ electronic mail accounts without their consent.”
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