shep.ca

This is part seven of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of enforcement in 2015. Crosslinks will be added as new parts go up.

Part 1: Terminology

Part 2: Parameters

Part 3: Big Numbers

Part 4: Case File – Compu-Finder

Part 5: Case File Anthology, 2015-2016

Part 6: Case File – Blackstone Education

Part 7: Case File Anthology, 2017-2018

Part 8: Case File – Brian Conley/nCrowd

Part 9: Case File Anthology, 2019-2022

Part 10: NOV – Sam Medouini

Part 11: Wrap-Up

Core resources:

The Act

Enforcement Actions Table (CASL selected)

March 9, 2017

March of 2017 comes in like a lion, with a $15,000 decision against William Rapanos, the creator of flyers for distribution via Canada Post.

The decision is rare in that it articulates the complaints the CRTC received, and recreates a message in the decision:

It’s hard to parse where the CRTC / CASL takes action on these. 50 individuals and 58 submissions doesn’t seem like much, ranked against the 218,000:1 ratio that leads to financial penalties. Without understanding the day-to-day workings of CASL – chiefly, how submissions cluster (maybe 58 is a very high number for a single organization?), it’s difficult to say whether 58 submissions is an eyebrow-raising amount. If not, it’s hard to know why Rapanos was selected.

But – as far as violations go, Rapanos batted the circuit: his messages sent without consent, without contact info or an unsubscribe mechanism.

I love this case, because it has an an awe-inspiring legal Hail Mary by Rapanos, who claimed somebody pirated his Wi-Fi and sent the messages without him knowing, and that he had no connection to a business he very clearly owned [s26-29]: “The suggestions that Mr. Rapanos was potentially the victim of identity theft or that someone unknown to him accessed his unsecured home Internet connection are not persuasive, since they were not supported by any other indicators of fraud or of evidence that his identity had otherwise been used for malicious purposes. Neither Mr. Rapanos, nor any of the other individuals who were asked to do so through notices to produce, provided to the investigator any documentation to support the claim that boarders had resided in Mr. Rapanos’ house or accessed his Internet connection.”

There is never a bad time to drop a reference to what I think is one of the greatest comedy sketches of all time, and I thank Mr. Rapanos for this opportunity:

[s27-29] rebuts this at length, and essentially boils down to “oh, come on.”

As seems common, postalflyers.club is no longer in operation – the domain has no current owner and is available for registration per a WhoIs search. The Wayback Machine has never archived the page, possibly because it’s a redirect to another site that doesn’t exist any more, per [s14], http://firstunitedpartners.com, which also is defunct, available on a WhoIs search, and per the Wayback Machine was only a “domain for sale” notice as of October 2015.¹Side note: It’s curious that William Rapanos is a “Toronto-area” man at the time of filing, and there’s a 2014 investigation against a Sharon Rapanos of Bowmanville, in the GTA. I can’t find an evident connection between the two, but it’s not a common last name. The NTP for Sharon Rapanos was a demand to produce the names of anyone who had access to her Internet from July 2014 to June 2015, and given William’s reliance on “I was hacked” as his defense above, there seem to be some dots that can be connected. Or not. The universe is big and full of coincidences.

Issued penalty: $15,000
Final penalty: $15,000
Total issued AMPs: $2,207,000
Total imposed AMPs/monetary penalties: $813,000
Differential: $1,378,000

June 12, 2017

$10,000 monetary compensation paid by Ghassan Halazon “in his individual capacity”.

Short and sweet: it looks like he was the CEO of several deals sites, now bankrupted, but still responsible for CEMs sent by Couch Commerce, and “agreed to make a monetary payment of $10,000 to the Receiver General of Canada”.

If Couch Commerce Inc. was a company, why was Mr. Halazon pursued as an individual / the CEO under the Act? Other actions have been taken against companies — both previous, such as Kellogg and Blackstone, and even just below, with 514-BILLETS. Vicarious liability, which is not detailed in this action, but will come up soon when we look at Brian Conley and nCrowd.

Issued penalty: $10,000
Final penalty: $10,000
Total issued AMPs: $2,217,000
Total imposed AMPs/monetary penalties: $823,000
Differential: $1,378,000
Kiss of Death: Dead as Doornail ²I get curious about things, so looked up “Ghazan Halazon” on LinkedIn, and found two profiles — the first, “dealfindingghazanhalazon” is the CEO of Couch Commerce, still lists Ghazan Halazon as its CEO, but there’s a second Ghazan Halazon, with an identical education background, but who mysteriously doesn’t mention Couch Commerce at all. Does this count as two?

March 15, 2018

Monetary compensation of $100,000 from 9118-9076 QUÉBEC INC. and 9310-6359 QUÉBEC INC. (514-BILLETS) (https://crtc.gc.ca/eng/archive/2018/ut180315.htm)

First of all, that’s a pretty sweet phone number. 514 is the area code for Quebec, and BILLETS is a 7-digit combination that’s French for “Tickets”.

Second, while previously there didn’t seem to be a distinction between “monetary compensation” (paid to the Receiver General) and AMPs (generally “paid in accordance with the instructions contained in the notice of violation”) in the past, there’s a big swing here. As often, this is brief enough that we can put it in an accordion, but I’ll ask you to pay attention to the bit at the bottom, about payment:

So the published $100,000 was actually a $25,000 financial penalty, and $75,000 issued in discounts… to, one assumes, the very same people they were spamming to become customers in the first place.

Remember recently, how Tim Hortons engaged in egregious privacy violations and proposed that it give customers a free coffee and a donut rather than any, shall we say, meaningful penalty?

That seems to be where the Tim Hortons matter landed, per this Superior Court of Quebec decision of September 2022.

Of note in that decision is what I’d say is some extremely valid criticism of these kinds of arrangements – [s50]: “It has been said that they provide benefits to the companies being sued which runs afoul of the objective to deter harmful behaviour. Other objections include the low take-up rate of coupons, the fact that compensation may be tied to a purchase obligation, undue restrictions on the use of coupons and the high fees claimed by class counsel.”

This is enumerated in a series of factors that the court should consider with coupon-based compensation schemes:

Other than that, this is a pretty open-and-shut violation: spam texts, with little sender and no unsubscribe / consent withdrawal information, clearly violating Section 4 of the regulations.

The decision seems… inexplicable in isolation, but with other prior decisions, such as the Blackstone one that AMPs should be lowered arbitrarily for small businesses, it does seem like the CRTC / CASL has the ability to adjust decisions in ways that may seem baffling to the casual observer. It’s hard to figure out what $75,000 in issued coupons is “worth” in terms of tallying penalties. It’s definitely not a $75,000 loss to the company. If I use an admittedly pretty arbitrary sourced redemption rate of 7%, it comes out to $5,250 out of pocket, which I’ll go forward with.

Issued penalty: $100,000
Final penalty: $30,250
Total issued AMPs: $2,317,000
Total imposed AMPs/monetary penalties: $853,250
Differential: $ 1,463,750

July 11, 2018

$250,000 in AMPs against Datablocks Inc. and Sunlight Media Network, Inc. (rescinded)

At this point, I’ll admit it:

I’m lost.

Part of the point of this was to track what the CRTC is saying it’s done, and what it’s actually done, because the announced penalties under CASL seem to be staggeringly high compared to the totals. I’m’a carry on, but situations like this one make it very challenging to keep track of what the CRTC claims has been done and what it’s tallying toward the “score.”

In its most recent enforcement snapshot, it states:

Payments and Penalties Under CASL

Since CASL came into force in 2014, compliance and enforcement efforts have resulted in administrative monetary penalties⁹A person who is served with a Notice of Violation has the opportunity to make representations to the Commission with respect to the amount of the penalty or the alleged violations. As such, any case brought to the Commission is subject to a review. (footnote theirs) and undertakings totalling over $3.6 million. (emphasis mine)¹⁰“Enforcing Canada’s Anti-Spam Legislation, Actions carried out by the CRTC between October 1, 2022 and March 31, 2023,” https://crtc.gc.ca/eng/internet/pub/20230331.htm

I’m not caught up yet – there’s still a few decisions from 2019-22 left to go – but I’ll tell you right now it’s not going to be even a fraction of $3.6 million in imposed penalties. Spoiler alert: we’re barely going to crack a million.

I’m going to keep gamely tracking decisions like this as part of the overall tally which theoretically will lead to that $3.6 million, but the math behind these pronouncements is getting increasingly baffling.

Anyhow.

The Datablocks/Sunlight Media decision is highly complex, and unlike all CASL enforcement to date orients around subsection 8.1 of the Act:

The gist of it is an accusation that Sunlight Media (operating an online ad network) and Datablocks (software/routing infrastructure), ran domains that redirected Government of Canada computers to a site that used Adobe / Shockwave Flash ¹¹now there’s a specific nostalgic hit for nerds of a certain age exploits to install malware on the Government of Canada computers.

The infected computers were all promptly re-imaged without collecting any data on the malware, so there was no evidence of this after the fact [s39-47, 51]; further, the Commission noted that given IT processes it was plausible that the Flash files would have been blocked prior to installation [s69].

So it was dropped.

One thing to note here is the scope of this NOV and decision seems to be restricted to specific Government of Canada computers, while the initial investigation (now offline, archived here in the Wayback Machine) doesn’t mention this limitation of scope at all — the Government of Canada doesn’t get mentioned once in the body of the investigation, which talks about “malvertising” as a general scheme. It’s unclear how the scope of the violation narrowed from presumably a broad scheme to promulgate malvertising across the Internet to a few government computers.

Another thing of note is the clarification that malware must be successfully installed for a violation to occur – an attempt to install malware apparently doesn’t trigger CASL 8.1:

[s53] The Commission notes that subsection 8(1) of the Act refers to the installation of a computer program, not an attempt to install one. If the intent of Parliament in writing the Act had been to cover attempts to install, it likely would have included that language in subsection 8(1) of the Act. Furthermore, contrary to certain arguments made on the record, the issue is not necessarily about the infection, or compromise, of a computer system, since those actions or consequences are not referred to in the Act.  The question is whether there is sufficient evidence on the record of the proceeding to conclude, on a balance of probabilities, that the Shockwave Flash Files listed in the NOVs were installed. (emphasis mine)

Issued penalty: $250,000
Final penalty: $0
Total issued AMPs: $2,567,000
Total imposed AMPs/monetary penalties: $853,250
Differential: $ 1,713,750

• 1
  Side note: It’s curious that William Rapanos is a “Toronto-area” man at the time of filing, and there’s a 2014 investigation against a Sharon Rapanos of Bowmanville, in the GTA. I can’t find an evident connection between the two, but it’s not a common last name. The NTP for Sharon Rapanos was a demand to produce the names of anyone who had access to her Internet from July 2014 to June 2015, and given William’s reliance on “I was hacked” as his defense above, there seem to be some dots that can be connected. Or not. The universe is big and full of coincidences.
• 2
  I get curious about things, so looked up “Ghazan Halazon” on LinkedIn, and found two profiles — the first, “dealfindingghazanhalazon” is the CEO of Couch Commerce, still lists Ghazan Halazon as its CEO, but there’s a second Ghazan Halazon, with an identical education background, but who mysteriously doesn’t mention Couch Commerce at all. Does this count as two?
• 3
  Abihsira c. Stubhub inc., supra, note 10, paras. 45 b) and d); Hurst c. Air Canada, 2019 QCCS 4614, para. 29; C. PICHÉ, supra, note 11, pp. 38 and 39.
• 4
  Abihsira c. Stubhub inc., supra, note 37, para. 44 h).
• 5
  Ibid, para. 44 a); Preisler-Banoon c. Airbnb Ireland, 2020 QCCS 270, paras. 34 to 35 (closing judgment 2021 QCCS 15); Gosselin c. Loblaws inc., 2019 QCCS 3941, para. 24; Jacques c. 189346 Canada inc. (Pétroles Therrien inc.), supra, note 12, para. 15.
• 6
  Picard c. Ironman Canada inc., supra, note 28, para. 55; Abihsira c. Stubhub inc., supra, note 10, para. 44 j); Preisler-Banoon c. Airbnb Ireland, supra, note 39, para. 33.
• 7
  Hurst c. Air Canada, supra, note 37, para. 33; Gosselin c. Loblaws inc., supra, note 39, para. 30.
• 8
  Abihsira c. Stubhub inc., supra, note 10, para. 44 f).
• 9
  A person who is served with a Notice of Violation has the opportunity to make representations to the Commission with respect to the amount of the penalty or the alleged violations. As such, any case brought to the Commission is subject to a review. (footnote theirs)
• 10
  “Enforcing Canada’s Anti-Spam Legislation, Actions carried out by the CRTC between October 1, 2022 and March 31, 2023,” https://crtc.gc.ca/eng/internet/pub/20230331.htm
• 11
  now there’s a specific nostalgic hit for nerds of a certain age

This is part six of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of enforcement in 2015. Crosslinks will be added as new parts go up.

Part 1: Terminology

Part 2: Parameters

Part 3: Big Numbers

Part 4: Case File – Compu-Finder

Part 5: Case File Anthology, 2015-2016

Part 6: Case File – Blackstone Education

Part 7: Case File Anthology, 2017-2018

Part 8: Case File – Brian Conley/nCrowd

Part 9: Case File Anthology, 2019-2022

Part 10: NOV – Sam Medouini

Part 11: Wrap-Up

Core resources:

The Act

Enforcement Actions Table (CASL selected)

I had set Blackstone aside because it looked like an education space company, but now that I’m in it, it’s a training company, and on its face looks very similar to Compu-Finder.

This on its own is not necessarily proof of anything – correlation is not causation – but companies that push for-profit training courses seem to come up a lot in CASL decisions. Unlike Compu-Finder, Blackstone Seminars/Blackstone Learning Solutions/Blackstone Professional Development Group seems to be soldiering on. Their online presence doesn’t suggest great health, though: the site looks like it’s been coded to viewports that are only about 800px wide, which suggests it hasn’t been touched since 800×600 was king of the display resolutions, which was, uh, 2005?

I know this is a bit obsessive but I care about UX and accessibility, and for a company that is supposed to be providing training to the government, from whence all accessibility legislation hath come, this seems just ridiculous to me:

Anyway – back in 2014, when pretty much all computer monitors accommodated much wider resolutions than 800px¹sorry, I’ll stop now, Blackstone was served a Notice to Produce (NTP). An initial deadline of November 21 was extended to December 3 at Blackstone’s request, and then – well, let me just flip the entire thing into an accordion here, emphasis in the original:

If you haven’t looked at it, flip that thing open and take a look at that last paragraph, which explicitly lays out how to appeal this decision with the Federal Court of Appeal.

Blackstone instead apparently filed an application for leave to appeal with the Supreme Court of Canada, which is not the Federal Court of Appeal.²I can’t find the Application for Leave to Appeal on the SCC website, but that might be because it didn’t even get heard – per this CRTC decision, s8-12, the SCC Registrar wrote back and copied the Commission that the SCC was not the right venue. This doesn’t seem to exist in any findable online archive.

The Supreme Court replied to Blackstone – wrong venue! – and then Blackstone did not appeal with the Federal Court, for some reason. 

But – while I am not a lawyer (and this is not legal advice) – I’d think that somebody at Blackstone would have very sharp words for their counsel for not understanding the fundamentals of how appeals work, and not even reading the NTP request letter or follow-up directive of January 22. 

So – after an odd digression into inappropriate leaves for appeal – the CRTC issued its decision on October 16, 2016.

Worthy of note:

• A campaign is a violation, not an individual email: [2]”The notice identified nine messaging campaigns totalling 385,668 commercial electronic messages sent by Blackstone between 9 July and 18 September 2014 without the consent of the recipients. As a result, a designated person stated that they had reasonable grounds to believe that Blackstone had committed nine violations of paragraph 6(1)(a) of the Act.”
• You don’t need a price to appear to be selling something: [18] “The cost of these programs was not specifically discussed; however, the nature of the language used, including references to various discounts and group rates, conveyed that these courses were services available for purchase from Blackstone. The Commission thus determines that the messages were sent for the purpose of advertising and promoting services commercially available from Blackstone, and were commercial electronic messages within the meaning of subsection 1(2) of the Act.”
• A bit of unpacking around how publishing an email address on the Internet is supposed to work re. “conspicuous publication” in para. 10(9)(b) of the Act [25-28 of the CRTC decision] – key phrase being “the Act does not provide persons sending commercial electronic messages with a broad licence to contact any electronic address they find online; rather, it provides for circumstances in which consent can be implied by such publication, to be evaluated on a case-by-case basis. Pursuant to section 13 of the Act, the onus of proving consent, including the elements of implied consent under paragraph 10(9)(b) of the Act, rests with the person relying on it.”
• Other than complaining initially about timelines and the AMP amount, and the misguided appeal to the Supreme Court, Blackstone doesn’t appear to have cooperated with the CRTC at all; [55] “Blackstone did not cooperate with the investigation. The company refused to respond to a notice to produce issued under section 17 of the Act, even after a Commission decision requiring that it do so.”

And – despite Blackstone essentially just filing complaints and misfiling appeals and not doing anything that the Commission asks them to do – the CRTC still lowers the AMP from $640,000 to $50,000.

Once again, like with Compu-Finder, there’s what feels like almost a tacit admission that they do this to terrify marketers into compliance: [60] “As stated in the Act, the purpose of a penalty is to promote compliance with the Act, and not to punish. To this end, the penalty set out in the notice of violation places great emphasis on the principle of general deterrence. The Commission accepts that this is a valid principle to be considered in the imposition of an AMP, but considers that the specific circumstances of Blackstone’s case, and the violations that have taken place, require a lower AMP.”

Why the drop to $50,000? Because [61-62] Blackstone is a small business; its belief that it had consent was established before the release of the 2015-published Guidance on Implied Consent; along with the idea that other regimes like the Unsolicited Telecommunications Rules have lower penalties and still result in compliance.

Which — look, I am supportive of the CRTC and CASL. I understand the logic of the stunning amounts announced in terms of their value as deterrents. But there’s a bit of “boy who cried wolf” here — a risk of normalizing the process of not taking large judgments that seriously because you can be certain they’ll be amended downward.³As an aside, an early post-lockdown internal comms issue was mask enforcement. It was mandated and we were announcing that masks must be worn in buildings, with certain exceptions for eating/drinking. But practically, who would enforce those rules during campus open hours, continuously, in all areas? As I was saying at that time, if you can’t meaningfully monitor and enforce rules globally, the second approach is to make punishment so draconian that it is terrifying to anyone that contemplates breaking the rule. But the #1 rule of terrifying punishments is that you kind of have to stick to the terrifying component. “We will announce the iron maiden but walk it back to a brisk tickling” over time is in some respects worse than just appealing to the common good.

This was also in yesterday’s 2015-16 round-up, but just so the tally is close at hand:

Issued penalty: $640,000

Final penalty: $50,000

Total issued AMPs: $2,192,000

Total imposed AMPs/monetary penalties: $908,000

Differential: $1,284,000

• 1
  sorry, I’ll stop now
• 2
  I can’t find the Application for Leave to Appeal on the SCC website, but that might be because it didn’t even get heard – per this CRTC decision, s8-12, the SCC Registrar wrote back and copied the Commission that the SCC was not the right venue. This doesn’t seem to exist in any findable online archive.
• 3
  As an aside, an early post-lockdown internal comms issue was mask enforcement. It was mandated and we were announcing that masks must be worn in buildings, with certain exceptions for eating/drinking. But practically, who would enforce those rules during campus open hours, continuously, in all areas? As I was saying at that time, if you can’t meaningfully monitor and enforce rules globally, the second approach is to make punishment so draconian that it is terrifying to anyone that contemplates breaking the rule. But the #1 rule of terrifying punishments is that you kind of have to stick to the terrifying component. “We will announce the iron maiden but walk it back to a brisk tickling” over time is in some respects worse than just appealing to the common good.

This is part five of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of enforcement in 2015. Crosslinks will be added as new parts go up.

Part 1: Terminology

Part 2: Parameters

Part 3: Big Numbers

Part 4: Case File – Compu-Finder

Part 5: Case File Anthology, 2015-2016

Part 6: Case File – Blackstone Education

Part 7: Case File Anthology, 2017-2018

Part 8: Case File – Brian Conley/nCrowd

Part 9: Case File Anthology, 2019-2022

Part 10: NOV – Sam Medouini

Part 11: Wrap-Up

Core resources:

The Act

Enforcement Actions Table (CASL selected)

Following the Compu-Finder penalty levied in early 2015 (to be walked back in 2017), CASL goes on a tear, dropping AMPs left and right. 7 out of the 15 total AMPs issued under CASL come from these two years.

We’re going to set aside one of them as particularly relevant to my interests (education space), and zip through some of the others:

March 25, 2015:

$48,000 AMP levied against “Plentyoffish Media”, a dating site. I’m not sure why people would want to date folks who are plenty offish, but there y’go. There was no question about consent here — CEMs were only sent to registered subscribers — but with no evident, or a non-functional, unsubscribe mechanism. This, along with a compliance program, seems to have passed without any re-evaluation or follow-up.

Issued penalty: $48,000

Final penalty: $48,000

Total issued AMPs: $1,148,000

Total imposed AMPs/monetary penalties: $248,000

Differential: $900,000

June 29, 2015:

$150,000 AMP levied against Porter Airlines, a small carrier. CEMs were sent to people without Porter being able to furnish any proof of consent. Some messages were sent without contact information, and others without “clear and prominent” unsubscribe information. Again, this plus a compliance program seems to have landed with no further appeals or follow-up.

Issued penalty: $150,000

Final penalty: $150,000

Total issued AMPs: $1,298,000

Total imposed AMPs/monetary penalties: $598,000

Differential: $900,000

November 20, 2015:

$200,000 monetary compensation paid by Rogers Media, a telecommunications giant. There were flawed unsubscribe mechanisms in emails they were sending, some unsubscribe requests were not acted upon within 10 days, others did not have an unsubscribe address that was valid for a minimum of 60 days after the message was sent. This, with a compliance program, landed without appeals or follow-up. The financial penalty is framed as “monetary compensation” rather than an “administrative monetary penalty,” with no further explanation.

Issued penalty: $200,000

Final penalty: $200,000

Total issued AMPs: $1,498,000

Total imposed AMPs/monetary penalties: $798,000

Differential: $900,000

September 1, 2016:

$60,000 monetary compensation paid by Kellogg Canada Inc., a food company. It, or authorized third parties, sent email without consent. This, with a compliance program, landed without appeals or follow-up. The financial penalty is framed as “monetary compensation” rather than an “administrative monetary penalty,” with no further explanation.

Issued penalty: $60,000

Final penalty: $60,000

Total issued AMPs: $1,552,000

Total imposed AMPs/monetary penalties: $858,000

Differential: $900,000

October 10, 2016:

$50,000 AMP levied against Blackstone Learning, a seminars/training company.

We’re going to unpack this more in the next post, as I’m very interested in education-space developments here, but in a nutshell, lots of email without proof of consent. The notice of violation (which was issued on January 30, 2015, but doesn’t seem to be available online) sent to Blackstone set out an AMP of $640,000, but the decision lowered it to $50,000.

Issued penalty: $640,000

Final penalty: $50,000

Total issued AMPs: $2,192,000

Total imposed AMPs/monetary penalties: $908,000

Differential: $1,284,000

December 14, 2016:

$100,000 AMP issued against Brian Conley of Couch Commerce/nCrowd, an online deals website. We’ll discuss this in detail when we get to 2019 and the final CRTC decision. Note that the link above goes to the final 2019 decision — Enforcement action 9090-2015-00414 (the 2016 notice) isn’t available, and the CRTC’s table of decisions links to the 2019 CRTC decision rather than the enforcement action.

The timing here is important, for reasons we’ll get into in our 2017-18 anthology including Conley’s case.

We’ll be back to look more in depth at Blackstone, and then get back to reviewing other CASL decisions.