The CRTC announced that Ghassan Halazon has paid, as an individual, a fine of $10,000 to relieve himself of his responsibilities as CEO, in violations of the Canadian Anti-Spam Law (CASL) committed by the company he ran at the time. This is the first time a corporate executive has been fined, and there are several lessons to be learned.
Enforcement of CASL is toughening up
Several observers misinterpreted the government’s decision to postpone the right to civil and collective redress at the end of 2017, as a sign of easing of the application of CASL. This is not the situation and Halazon’s case demonstrates this.
The CRTC has always stated that the three transitory years that companies had to implement their compliance program was sufficient and that those who have not yet done so have no excuse. In fact, Steven Harroun, the CRTC’s Chief Compliance & Enforcement Officer, said at a recent conference:
Commercial electronic messages are the primary source of what prompts Canadians to report cases that require follow-up investigation — commercial email messages that you or your organisation may be responsible for sending. Email messages account for more than three-quarters of incidents reported to us.
Every business should have a compliance program in place to help ensure each commercial message or telemarketing call is compliant. If your practices are ever called into question, a thorough compliance program can help you in a due diligence defence.
But let me be clear, CASL and Unsolicited Telemarketing Rules are not new. And ignorance is not a defence.
Look at it this way—if I do a U-turn on the 401 and my defence to the police officer who pulls me over is that I did not know I couldn’t make a U-turn, I’m still getting the ticket.
The same applies if violations under these laws have been determined. There will be consequences, which could include administrative monetary penalties and the obligation to implement compliance programs. At best. And, at worst, public shaming that will keep your public relations department busy for a long time.
The message is clear, very quickly, several penalties a year will jump to several fines per month, as was the case with the National DNCL, another organisation regulated by the CRTC.
Why was Mr. Halazon fined?
In 2009, Mr. Halazon founded Cough Commerce, the company that launched TeamBuy.ca in 2010 and bought Dealfind.ca in 2013. Unfortunately, the merger wasn’t successful, and the company had to file for bankruptcy protection on August 29, 2014. Halazon’s business was then bought on September 24, 2014, by nCrowd, an American company specialising in bundle purchases.
Nevertheless, according to the CRTC, between July 2 and September 9, 2014, TeamBuy violated CASL, by sending several emails with a withdrawal mechanism that was not functioning well or was too complicated. Ghassan Halazon being at the time CEO of the company was found personally responsible under section 31 of the Act, which states that:
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, authorised, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against.
C-level, directors, managers, administrators are all personally liable
Section 31, on which Halazon’s fine is based, is one of the many provisions of CASL that few people know about nor is it discussed by the media. It’s unfortunate, because corporate protection under this section is removed, and thus makes individuals such as directors, managers, administrators, etc. personally responsible for CASL violations.
The CRTC’s Chief Compliance and Enforcement Officer has made this clear in a recent statement:
Receipt of commercial emails is the primary source of complaints from Canadians who report cases requiring follow-up investigations, and you or your organisation may be held responsible for sending these commercial emails.
The CRTC’s adamant actions…
Canada’s Anti-Spam Legislation came into force on July 1, 2014, and TeamBuy went bankrupt two months later. Yet, the CRTC investigated this case, for almost three years, for emails sent over a very short period. This unyielding behaviour runs counter to much of the CRTC’s reassuring PR speeches. What their actions do seem to mean is that:
- That the notion of transition period is not taken into consideration and that the CRTC expects companies to have been compliant since July 2, 2014,
- Their enforcement is not solely for the goal of compliance, but for punishment,
- Everyone, at any time, past or present, is at risk of being fined.
Another surprising move by the CRTC
It is also surprising to note that while the case file was concluded on June 12, 2017, the CRTC waited until Friday afternoon to publish this news on its website, and this without issuing a press release − an approach often used in politics to make sure journalists don’t talk about it.
Are you insured?
More and more organisations are now taking out liability insurances, commonly referred to as an Errors & Omissions insurance (E&O) to protect their employees. A common practice with NGOs to protect volunteers, but that is now becoming more standard practice for private businesses, in light of CASL.
N.B.: Savvy insurance companies are starting to exclude CASL from their policies if the company can not demonstrate that it has implemented a complete compliance program.
Each decision made and conference given by the CRTC sheds a little more light on their approach regarding investigations and fines. Regardless, the words of the CRTC’s Chief Compliance and Enforcement Officer must be taken seriously:
Each company should have a compliance program to help ensure that every commercial or telemarketing message is compliant. If your practices are challenged one day, a comprehensive compliance program can help you establish a due diligence defence.
Now then, considering that the emails you, your company and your employees sent, or send today can haunt you in the future, it’s more important than ever to protect yourself and to implement a compliance program. Speak with one of our experts for free.