When CASL enforcement is good news

Normally when I write one of these posts it’s because there is a new law or issue that I want to warn members about. This post is different though. I’m not going to tell you to stop doing anything (for example, stop using the MLS® marks incorrectly on Coming Soon signs) or tell you not to do something (namely, don’t put properties on your website that aren’t for sale). Today I’m going to tell you some good news. Are you ready? Have I built it up enough?

The good news is that the CRTC has issued their first decision regarding a violation of Canada’s Anti-Spam Legislation (CASL) and the decision included some very reasonable and useful guidance on implied consent. Before discussing the decision though, let’s back up and I’ll remind you how CASL is enforced.

The CRTC enforces CASL by issuing notices of violations, which set out administrative monetary penalties (AMPs), or by entering into voluntary undertakings with companies that have violated CASL. If a company is not willing to enter into an undertaking, they either pay the AMP set out in the notice of violation or challenge the AMP by making representations to the Commission. This is what Blackstone Learning Corporation did. They are only the second company to be issued a notice of violation since CASL came into force and they are the first company to make representations, forcing the Commission to consider whether Blackstone really breached CASL.

The Commission found that Blackstone did breach CASL. They sent more than 350,000 emails without consent promoting training courses that covered technical writing, grammar and stress management. Blackstone claimed they had implied consent because the email addresses were conspicuously published. The Commission didn’t buy this. They said that CASL creates a higher standard than mere publication of an email address to imply consent: the email address must not be accompanied by a statement indicating that unsolicited commercial electronic messages (CEMs) are unwelcome; and the email must be relevant to the recipient’s business or role in an official capacity. They also said that implied based on conspicuous publication will be determined on a case-by-case basis and will depend on whether it is reasonable to infer consent to receive a particular email in the circumstances.

This is good news for REALTORS® who have their email address on their websites. Now it is clear that this publication of your email address is not a blanket invitation to receive spam. However, you might want to add a sentence to your website stating that you don’t want unsolicited CEMs. This would make it even more obvious that senders of CEMs cannot rely on conspicuous publication of your email address as a ground for implied consent.

Does this decision mean you will receive less spam as a result of publishing your email address? Will the CRTC continue to take a reasonable approach in enforcing CASL? I have no idea. I just wanted to share some good news for a change so I wouldn’t get a reputation as the lawyer of doom.

The article above is for information purposes and is not legal advice or a substitute for legal counsel.

Allison McLure, former Legal Counsel, provided advice to CREA, boards, and associations on intellectual property law, DDF®, and Canada’s anti-spam legislation, as well as protected CREA’s trademarks and helped members comply with federal legislation and CREA’s trademark rules.

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