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Failure to comply with the new Canadian anti-spam legislation (CASL) can cost you
Posted in Privacy

In a recent decision from the Canadian Radio-television and Telecommunications Commission (CRTC), Plentyoffish Media Inc. was fined $48,000 for violating Canada’s anti-spam legislation. This announcement comes only weeks after Compu-Finder was hit with a $1.1 million fine, which was the first fine levied after CASL came into effect in July 2014.

Plenty of Fish, a Vancouver based company, runs a popular free online dating service. It was founded in 2003 and has grown to be a massive global presence, being ranked the number one dating site worldwide in 2011. In addition to their website, pof.com, Plenty of Fish also has mobile apps for iPhone and Android.

On March 25, 2015, it was announced that Plenty of Fish had voluntarily entered into an undertaking with the Chief Compliance and Enforcement Officer of the CRTC. The undertaking resulted from emails that Plenty of Fish sent to registered users of its dating service between July 1, 2014 and October 8, 2014 that contained an unsubscribe mechanism that, according to the CRTC, “was not set out ‘clearly and prominently’ and was not able to be ‘readily performed’”. The emails in question were contrary to sections 6(2)(c) and 11(1)(b) of the statute, as well as sections 2(2) and 3 of the regulations.

In addition to the $48,000 payment, Plenty of Fish has undertaken to implement a compliance program and ensure that third parties that send messages on its behalf will also comply with the Act and the Regulations. The compliance program, which will be implemented by Plenty of Fish, will include training and education for employees, monitoring, and disciplinary procedures, among other things.

It is interesting to note, that while Plenty of Fish took steps to remedy the situation by updating its unsubscribe process to comply with the legislation and has since agreed to develop a compliance program including staff training, Compu-Finder was ordered to pay a much more substantial fee of $1.1 million after the CRTC found that it has “flagrantly” flouted CASL.

These decisions are instructive in three respects. First, the facts serve as a reminder of the kind of conduct that can give rise to liability under CASL for businesses that communicate electronically with their customers and others (which is most businesses in the modern world) and the need for vigilance and appropriate advice to ensure compliance. Second, the decisions give businesses and the lawyers who advise them a sense of monetary and non-monetary penalties that can result from a breach of CASL. Third, the decisions, and variance in fines, demonstrate that, although the CRTC is willing to issue tough penalties, parties are more likely to receive favourable treatment if they respond quickly and work with the CRTC to develop a plan to address compliance issues.

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