The CRTC War on Spam starts nailing the little man
This Man was Fined $15,000 for Sending Marketing Emails – CASL and the CRTC
You run your own business. You’re not a corporation, you’re just one person working out of your basement. Cash flow is a little tight so you need a little more revenue. You email a simple marketing flyer to prospective customers. BOOM! The CRTC whacks you with a $15,000 fine.
Unlikely scenario? It happened last week to William Rapanos.
For the first time, the Canadian Radio-television and Telecommunications Commission (CRTC) fined an individual for CASL breaches, and if it happened to him, it can happen to you. The decision on the CRTC website is here.
Rogers Media, PlentyofFish Media, Porter Airlines, Kelloggs… all well-known corporate names that have been fined under CASL. The high-water mark is a fine of $1,100,000 issued to a numbered corp doing business as CompuFinder. Rapanos is the first human to be hit.
We’ve been warning of CASL (Canada’s AntiSpam Legislation) and its potentially horrific consequences since prior to its enactment by the feds in 2014. There are two key components to CASL. Number one is that before you send a business email or text, you have to have that intended recipient’s consent to receive that email or text AND you have to be able to prove you actually had that consent. Number two is that your emails must be transparent and contain an unsubscribe feature.
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There are other sections and subtleties, but for today those are the guts of the statute.
What did Rapanos do to attract the CRTC’s attention? He emailed an inoffensive marketing flyer, in which he advertised being able to design and deliver flyers through Canada Post. The email didn’t include an unsubscribe feature or the other features required by the statute. Fifty people complained to the CRTC about receiving this flyer by email.
That’s all it took, fifty complainers. The CRTC investigated. Rapanos was fined $15,000.
Granted, he didn’t help himself. A notice from the CRTC is not a casual document – it is the start of an investigation from a regulator who has shown a willingness to fight at street level (recall that the CRTC has already obtained two separate warrants under CASL, enforced by the police). Rapanos’ response was that an unknown person hacked his router and the emails weren’t sent by him. Trumplike, he offered no evidence for this bald assertion and so his defence failed. As the CRTC held, “It is highly improbable … that Mr. Rapanos was the victim of an identity theft orchestrated solely for the purpose of sending unsolicited [emails] advertising a flyer distribution business.”
Think of the resources the CRTC must have dedicated to the investigation, prosecution and his appeal. Yes, Rapanos clearly breached the statute, but he’s a small time offender. All he did was use the internet to offer his services to a new target market. Who did he offend in a previous life to earn this kind of bad karma? He’s just a little guy.
And that, I think, is the point. This wasn’t a knee-jerk reaction from the regulator, and it wasn’t a random decision to prosecute him. Fifty complaints is a pittance. This was a carefully planned message, and that message is, no one is immune from CASL. Whether you’re the size of media giant Rogers or a little guy like William Rapanos, CASL applies to you. You’ve been warned.
It will get worse on July 1, 2017. As we’ve pointed out before (most recently here) that is when a new private right of action (PRA) is created by CASL. In other words, if you send an email, and you can’t prove you had prior consent to send it, the recipient can sue you. Then the onus is on you as the sender to prove you had prior consent to send it, not on the recipient to disprove it. This PRA supports class action litigation, and just to make it a full roundhouse kick in the groin, damages are assumed, which means the plaintiff wouldn’t even have to prove damages to win.
This is the law of the land, from the Arctic Circle to the Great Lakes waters. The CRTC has made it clear that we are all subject to it.
This isn’t an attack on the CRTC. Sure, that government body has messed up many times (follow Mark Goldberg on twitter @Mark_Goldberg for his frontline view of the CRTC’s travails), but here, it’s merely enforcing the law.
To their credit, the CRTC staff have done their best to warn us. They have toured the country holding information sessions, before the legislation was enacted and after. The website is full of useful, easy-to-read information. They have clearly communicated their intentions to the public. The CRTC also partnered with New Zealand to fight global spam. The problem is, the public hasn’t been listening.
Rapanos was picked to force you to listen. Get into CASL compliance now so you’re not the next one tied to the whipping post.
Mr. Clausi is an experienced investment banker, executive and director. A graduate of Osgoode Hall Law School called to Ontario's bar in 1990, Mr. Clausi ... <Read more about Peter Clausi>