(Update March 23, 2017) In a joint agreement before the Competition Tribunal, the Avis Budget Group (ABG) agreed to pay a $3 million penalty along with a $250,000 fee. Let’s also add the lawyers’ expenses on top of this, which has probably been very costly for ABG considering how long these parties have been fighting it out in court.
The Competition Bureau, issued a news release, stating that under the Canadian Anti-Spam Act (CASL), it is asking the Competition Tribunal to impose $10 million fines (each) to the Avis Budget Group, and its two subsidiaries Aviscar and Budgetcar, in addition to forcing them to reimburse consumers fines of up to $35 million. These fines are the first to be imposed by the Competition Bureau under CASL.
Consent was not an issue
While most journalists and observers have emphasised the importance of consent when referring to CASL, this exemplary penalty demonstrates the complexity and reach of Canada’s Anti-Spam Law. The Competition Bureau asked the Competition Tribunal to impose the maximum amount allowed by law to each of the three companies, not because of a problem of consent, but because of misleading promotional content in their emails.
It should be noted that the Canadian Anti-Spam Legislation goes much further than prohibiting spam. The Act contains 70 different rules for each commercial electronic message sent. Furthermore, it also amends the Competition Act by allowing the Competition Bureau to issue fines under CASL when a company violates Section 74.011 of the Competition Act.
And so this is the basis for the case of the Avis Budget Group violation. The Competition Bureau believes that the promotions advertised by the group were misleading because the listed prices were 35% lower than the actual price the consumer paid.
In its Notice of Application, the Competition Bureau examined the promotions in their various formats, from websites to mobile applications to radio and print advertisements. But it was because these promotions were also sent by email, that fines of $10M could be imposed plus $35M to consumers that had been wronged.
The importance of carrying out a complete compliance audit
Many companies and industry observers erroneously believe that Canada’s Anti-Spam Law only imposes obligations regarding consent. The CRTC itself contributes to this false perception through its Business FAQs (How can businesses ensure they are in full compliance with CASL?)
This false perception is what led to the flurry of emails around July 1st, 2014 requesting consumers for their consent (an action that was completely unnecessary for businesses and in certain cases illegal).
CASL is complicated, there are many rules a commercial electronic message must adhere to, and some of the regulations can be unclear at times due to weak jurisprudence. The best way to protect your business is to conduct a comprehensive compliance audit (you are required to do so to be compliant according to the CRTC) and to implement a compliance policy that corrects any weaknesses identified during the audit.
This is what the CRTC recommends for all businesses that want to avoid penalties.