Canadian Lawyer InHouse

7 CANADIANLAWYERMAG.COM/INHOUSE JANUARY 2016 A roundup of legal department news and trends "The law itself is horribly complex to op- erate within," he says. In the CRTC enforcement actions so far, where there was no consent to the messages, and where large volumes of messages were blasted out and unsubscribe requests were ignored, Compu-Finder faced a $1.1-million fine. The CRTC has also gone after tech - nical violations by Porter Airlines, which faced a fine of $150,000 for failing to have an unsubscribe mechanism in place. In addi- tion, online dating site Plenty of Fish faced a $48,000 fine for the lack of prominence of its unsubscribe mechanism. "It's going to take some litigation to ex - plore what all the boundaries are," says Kratz. Having a solid compliance program is im- portant to help combat legal action, he says. Before pressing send, prudent marketers should make sure their systems are checking outgoing message recipients against their permissions list. "Behind your mechanism for collecting permissions, you need to have a robust customer relationship management system," he says. Companies that may have taken an expe - dited compliance approach might want to take a harder look at their electronic com- munications activities as due diligence is a defence, Kratz adds. "It's important to address technical com- pliance requirements as well as the business elements of a compliance program." When it comes to why Canadians continue to see so much spam, it could be some people are confusing international and U.S.-based spam as many American companies may still be unaware that Canada has a strict regime. In the United States, the law is that the first message is allowed but the company has to identify itself and honour an unsubscribe action from a consumer. In Canada, the first improper message is a violation. When asked what legitimate industries are the worst spam e-mail offenders, most survey participants said retailers were at the top at 38.1 per cent, followed by group- buy sites at 34.1 per cent, and travel sites at 30.3 per cent. Restaurants were the lowest at 8.9 per cent. Kratz says his impression is that retailers are "highly aware of the law" and want to be fully compliant. In some cases, however, retailers may not know what those administering their e-mail campaigns are doing. "I have a sense a lot of companies are still doing nothing or they're doing things wrong," says Steve Szentesi of Steve Szentesi Law PC, a competition and advertising lawyer in Toronto. He says some clients he has spoken to still want to take the chance on not being compliant or he sees that retailers are outsourcing their e-mail marketing to agencies that aren't producing compliant programs. "From a lawyer's perspective, it's surpris - ing," he says. Advertising agencies that work with many CONNECT WITH IN-HOUSE COUNSEL COLLEAGUES AT LEXPERT.CA/CCCA Check out in-house counsel's best networking tool! The 2015/16 Lexpert CCCA/ACCJE Directory & Yearbook online edition is a user-friendly, outstanding key resource for all in-house counsel. Along with immediate access to more than 4,000 listees at more than 1,900 organizations, you'll also find fresh editorial content, information on deals and links to important resources. Directory listees and CCCA members can also receive log-in credentials for access to detailed contact information to be able to connect with colleagues or research the in-house bar. ANYWHERE. ANYTIME. ANY DEVICE. Untitled-1 1 2015-10-02 12:27 PM

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