____Posted Tuesday March 14, 2017
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
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
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.
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