CASL: The real costs to officers and directors

CRTC is not handing out a ton of fines for violations or undertakings under CASL and the private right of action has been indefinitely postponed, so why bother changing your organization’s email practices when targeting Canadian citizens?

Why Bother?
There is a person at the other end of every single email you send.

A real person with whom you are attempting to do business. Very likely, this person did not ask for your email messages, and just as likely, they don’t really want them. Yet, because it is relatively cheap to do, we just keep sending blasts that are usually “all about us” and why someone should buy from us. One of our staff had the rather unpleasant experience of finding herself on the Old Navy email list and was sent 4+ messages a day for several days in a row. She stayed on for as long as she could stomach this barrage and finally, having been pummeled enough, she unsubscribed. Who is thinking these programs through? From here it looks like a lot of tactics and very little strategy behind these email programs. Email can be a very valuable tool if used at the right time, targeting a relevant message to the right people.

Let’s think this through as a good marketer. Maybe life as a marketer is quite simple: every time you touch a customer or prospect, you are giving “chips” or you are using “chips”. For the purposes of this discussion let’s consider that a “chip” is a measure of goodwill. Every time your brand is put forth through any medium, are you collecting goodwill or spending goodwill? Given you are paying to have that message delivered, I trust you are aiming to generate chips rather than spending them. A welcome email message (one you have clear consent to send and is relevant to the recipient) should generate a chip, whereas an unwelcome one or irrelevant one sent without consent costs you a chip. How are you doing with your current email program in the chip department?

Now let’s think it through as an officer or director of the company.

CASL and CRTC’s interpretaions have made it clear they plan to hold officers and directors responsible for the actions of their companies – regardless of size.

Meet Mr. Halazon – the CEO of Transformational Capital Corp. (TCC) who on June 12, 2017 entered into an undertaking with the CRTC to “make a monetary payment of $10,000”. Mr Halazon.  After describing the several ways the law was “allegedly” vilolated (remember this is an undertaking which has no admission of guilt, unlike a violation,  under which one is found in violation of the law and charged. Clearly it is better to co-operate with CRTC and enter into an undertaking. The fines are smaller and there is no admission of guilt. So the wording is: “It was also alleged that Mr. Halazon was personally liable for this violation pursuant to section 31 of the Act.”

CRTC as stated earlier, has not issued a ton of fines but they have been quite strategic in who they have fined for what. The fine for Mr. Halazon is a clear message to the market to call attention to Section 31 of the Act.

Section 31 of the Canadian Anti Spam Legislation states: 
Directors, officers, etc., of corporations 31 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.

Make no mistake, the postponement of the private right of action is not a reason to ignore this law.

CRTC, the Office of the Privacy Commissioner of Canada and the Competition Bureau are conducting audits and fining companies and individuals who break the law. Coming into compliance requires some changes in email practices that will result in more goodwill for your brand and less annoyance to your potential customers.