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Landmark Decision Extends Personal Liability for CASL Violations to Executive

This is a landmark decision and concerning, espeically if you’re a CEO or marketing executive.  If you’re a Froese Law client or friend of Froese Law, you know we do a lot of public speaking engagements.  When we discuss the laws surrounding digital marketing campaigns, we oftentimes describe Canada’s Anti Spam Legislation (“CASL”) as an annoying piece of legislation.  Kind of like a mosquito.  Small, annoying but it has teeth.  If you’re uncertain as to what CASL is, learn up on this legislation quick!  We’ve written about CASL before so click here for our previous article.

In a recent decision, the Canadian government has personally fined a CEO a $100,000 fine for its company’s CASL violations.  The government deemed that the executive oversaw a systematic violations of CASL and should personally responsible and fined accordingly.  The CASL violations included sending emails without consent and the emails did not contain functional unsubscribe mechanisms.  Even more interesting (or disturbing) is that the email list used by the company was purchased, which demonstrates that you really have to be careful as to how you compile your email distribution list.  The government also found that the company in question had failed to demonstrate that it had any internal policies or procedures that dealt with CASL.  What is interesting/alarming is that these are infractions committed by a corporate entity.  However, the government found that the CEO had directed, authorized, ascented to, acquiesced and participated in the CASL violations and, therefore, was held to be personally liable.  What is also interesting/alarming, is that the government held that in some circumstances the executive can be held to be personally liable, even if the company is not.  (That is a bit of a head scratcher).  

What’s the Take Away?

1. Remember that CASL is applicable to any company that is using digital marketing campaigns that are destined to Canadians.  That means that this is applicable to international and domestic companies.

2.  Creating CASL policies and procedures is critical.

3. Relying on third parties to generate email lists will not absolve you from liability.

4. If the president/marketing executive turns a blind eye to CASL compliance, he/she may be personally liable, even if the company is not.