201905.27

A natural person receives $100,000 fine as liable under Canada’s anti-spam law

In a decision dated April 23, 2019, the Canadian Radio-television and Telecommunications Commission (CRTC), an independent administrative authority, found Mr. Brian C., as a natural person, responsible for violating Canada’s anti-spam legislation and sentenced him to a monetary penalty of 100,000 CAD (Compliance Decision and Investigations CRTC 2019-111, 23 Apr. 2019).

Between September 2014 and June 2015, the CRTC received 246 reports of e-mails allegedly sent by a company named nCrowd, Inc. The investigation came up to the conclusion that Mr. Brian C. was the source of the unsolicited commercial messages.

In order to prove the prior consent of the recipients, Mr. Brian C. merely indicated that the e-mail addresses concerned were part of a list he had acquired from Couch Commerce, Inc. (this list included nearly 2 million addresses). Mr. Brian C. attempted to argue that 1.5 million individuals had given their consent to receive unsolicited commercial messages, in one day: the day the acquisition was made. The CRTC considered that the proof of consent was, to say the least, insufficient. In addition, the CRTC also criticized Brian C. for failing to provide the recipients with an effective unsubscribe mechanism.

The CRTC recalled that “Section 31 of the Act provides that an officer, director, agent, or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in, or participated in the commission of the violation, whether or not the corporation is proceeded against” (para 35 et seq.).

To justify the conviction of M. Brian C., the CRTC held that: i) he was the manager of the company; ii) he was one of the co-inventors of the marketing tool; iii) he had personally participated in the acquisition of the list from of Couch Commerce, Inc. and iv) he had signed the acquisition contract (paras 35 et seq.).

The CRTC justifies the amount of the fine by educational considerations. Summing up, the CRTC wants to make sure that Mr. Brian C will no longer break the anti-spam law.

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