CRTC Nets Plentyoffish Media Inc. for Non-Compliance with CASL: Plentyoffish Enters Into Undertaking
Hot on the heels of the Compu-Finder action, the Canadian Radio-television and Telecommunications Commission (the “CRTC”) has netted its next catch in its pursuit of regulating the use of commercial electronic messages. On March 18, 2015 Plentyoffish Media Inc. (“Plentyoffish”) entered into an undertaking with the CRTC in relation to its alleged violations of paragraphs 6(2)(c) and alleged non-compliance with paragraph 11(1)(b) of Canada’s Anti-Spam Legislation (the “Act” or “CASL”)1, as well as alleged non-compliance with subsection 2(2) and section 3 of the Electronic Commerce Protection Regulations (CRTC), SOR/2012-36.
Specifically, it was alleged that Plentyoffish sent commercial electronic messages to registered users of its service notifying them of the other services available through their registration. These messages included an unsubscribe mechanism that was not “clearly and prominently” set out and which could not be “readily performed”.
Under the Act, an individual may enter into an undertaking with the CRTC at any time, including before or after a Notice of Violation is issued. If the undertaking is entered into after a Notice of Violation issues, the proceeding commenced by the Notice of Violation is ended.
In this particular case, Plentyoffish entered into the undertaking prior to a Notice of Violation being issued. Once it became aware of the CRTC’s investigation into its email marketing practices, Plentyoffish updated its unsubscribe mechanism to comply with the Act. It also agreed to develop and implement a CASL compliance program, which is to include training and education for staff and the development of corporate policies and procedures. Notwithstanding its cooperation, Plentyoffish was required to pay a $48,000.00 monetary penalty for its alleged breaches of the Act.
Notably, the commercial electronic messages in question were sent to individuals who had registered with Plentyoffish and who, presumably, agreed to receive these types of messages, indicating that the CRTC is not only focusing on the consent aspect of CASL, but also on the form of commercial electronic messages. It is also notable that the penalty was in the context of an undertaking and active steps by Plentyoffish to assure compliance. This is a significant development and further signals that the CRTC is taking its role in regulating spam very seriously. As set out by CRTC’s Chief Compliance and Enforcement Officer, Manon Bombardier, “[t]his case is an important reminder to businesses that they need to review their unsubscribe mechanisms to ensure they are clearly and prominently set out and can be readily performed.”2
1 Act 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.