____Posted Tuesday March 14, 2017 ____

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CASL

CASL Enforcement Decision: Sending Messages without Consent or Prescribed Formalities

On March 9, 2017, the Canadian Radio-television and Telecommunications Commission issued a
Compliance and Enforcement Decision imposing a $15,000 penalty on an individual for violating Canada’s Anti-Spam Legislation by sending commercial electronic messages without consent from the recipients and without prescribed formalities.

The Decision related to three email campaigns, between 8 July and 16 October 2014, by William Rapanos advertising a design, printing and distribution service for commercial flyers. Over 50 complaints to the Spam Reporting Centre resulted in an investigation that included notices to produce documents issued to Rapanos and to various third parties (e.g. internet and mobile phone service providers and landlord). The investigation resulted in the issuance of a notice of violation to Rapanos setting out a $15,000 administrative monetary penalty (“AMP”) for 10 CASL violations – sending CEMs without the recipient’s consent, without prescribed information identifying the CEM sender or providing the CEM sender’s contact information and without a required unsubscribe mechanism. Rapanos disputed the notice of violation. He claimed that someone else sent the emails and asserted that he could not afford to pay the AMP. Rapanos also argued that the case against him had not been proven beyond a reasonable doubt in violation of the Canadian Charter of Rights and Freedoms . The Commission rejected Rapanos’ arguments and upheld the notice of violation. The Commission found, on a balance of probabilities, that the emails violated CASL, that Rapanos was responsible for the emails because they issued from his home internet connection and there was no credible challenge to the evidence implicating Rapanos, and that the $15,000 AMP was appropriate.

CASL Burden of Proof The Commission held that the Charter right to be presumed innocent until proven guilty beyond a reasonable doubt did not apply to CASL proceedings because they are not criminal proceedings. The Commission explained a designated investigator may issue a notice of violation if the investigator has reasonable grounds to believe a CASL violation was committed. The Commission also explained that if a person applies to the Commission to review a notice of violation, then the Commission’s decision regarding the alleged violation is based on a balance of probabilities.

Source BLG



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