CRTC Enforcement Advisory: Remember, You Must Have Records To Prove Consent

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The Canadian Radio-television and Telecommunications Commission (CRTC) issued an enforcement advisory to both businesses and individuals that send commercial electronic messages (CEMs) to keep records of consent. The CRTC reminded senders of CEMs that section 13 of Canada’s anti-spam legislation (CASL) places the onus on the sender to prove they have consent to send every single CEM.

The advisory made a point to note the CRTC has observed businesses and individuals unable to demonstrate they have obtained consent before sending CEMs. Failure to meet record keeping requirements has been alleged in recent CRTC enforcement decisions against organizations. However, today’s enforcement advisory may suggest the CRTC is finding record keeping to be a widespread concern, warranting this advisory.

Record keeping is one of the most contested provisions under CASL as the financial, organizational and technical burden weighs on senders to meet the high record-keeping standards set by the CRTC. Having the record keeping requirements on the CRTC’s radar adds further urgency to ensure a sender’s compliance program is sufficient.

The CRTC emphasized in its advisory that good record-keeping practices can assist senders establish a due diligence defense in the case of a violation under CASL. Violations of CASL may result penalties of up to CAD $1,000,000 for individuals, and up to CAD $10,000,000 for organizations.

The CRTC reiterated its guidance that record-keeping should document:

  • All evidence of express or implied consent from consumers who agree to receive CEMs. Evidence can be in various forms such as audio, electronic or paper.
  • The procedures and methods through which senders obtain consent
  • The sender’s CASL policies and procedures
  • All unsubscribe requests and subsequent actions taken

Click here to read the full CRTC Enforcement Advisory. For more guidance on record keeping, read the CRTC’s guidelines to help develop a corporate compliance program.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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