Kellogg Canada Cited for Violations of Anti-Spam Law

    Sep 13, 2016

    The Canadian Radio-television and Telecommunications Commission (CRTC) announced on September 1 that it has entered into an enforcement agreement with Kellogg Canada to address the company’s alleged violations of Canada’s anti-spam law (CASL). According to CRTC, during a two-and-a-half-month period in late 2014, Kellogg and/or its third-party service providers sent messages to recipients without their consent. It is the first alleged violation of the law by an organization or its service providers. As part of the agreement, the company agreed to pay a fine of $60,000 and to develop a compliance program to ensure that any third party authorized to send a commercial electronic message (CEM) on its behalf complies with Canada’s privacy and anti-spam laws and regulations.

    In July, CRTC issued an enforcement advisory providing guidance to individuals and businesses on how to achieve compliance with the recordkeeping and consent requirements prescribed under CASL. “The onus of proving consent always remains with the person(s) sending, causing or permitting the sending of CEMs,” the advisory states. “Senders of commercial electronic messages should consider keeping a hard copy or an electronic record of, among others: all evidence of express and implied consent (e.g. audio recordings, copies of signed consent forms, completed electronic forms) from consumers who agree to receive CEMs; documented methods through which consent was collected; policies and procedures regarding CASL compliance; and all unsubscribe requests and resulting actions.”

    According to Barry Sookman of McCarthy Tétrault LLP, CRTC’s recordkeeping requirements will be complicated to comply with in practice. “Most businesses did not have systems to track this kind of data when CASL was enacted,” he wrote in an August 29 blog post. “The reality is that most organizations still do not have the record keeping systems required to document the different forms of consents that CASL recognizes, the scope of the consents, or when they expire.”

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