Philip addressed the due diligence defence and the common law principles, but we're getting to the fact where, okay, you boo-boo once, you enter into a compliance agreement, and then you do it again, and those are in the factors to be considered under clause 20. When developing the penalties, you have to take this list of factors into consideration.
Beyond the due diligence defence, this is a compliance regime. So Mr. Misener appears, he's afraid Amazon might make a mistake one day: something happens with the technology, a new employee makes a mistake. What do we do? Well, they're likely going to hear from their clientele or the people who shouldn't have received that e-mail message: “Hey, you should have taken me off your list three months ago; I asked to be off the list.” So they're going to know they've done something wrong. The first thing they should do is approach one of the three enforcement agencies and say, “We think we've had an error here; we always intend to be compliant with this legislation, and we'd like to enter into an undertaking”, which is clause 21.
Short of that, short of their recognizing the mistake, then they'll be served the notice of violation, either by the CRTC, the Competition Bureau, or the Office of the Privacy Commissioner, and they have the opportunity then for the due diligence defence. And the same rules apply for the private right of action.
And failing being able to defend themselves, if it is an honest mistake, those factors for the scope, the nature of the violation, whether they profited from it—all of the negative implications of what they've done—have to be considered before we can process the monetary penalty. So if they didn't make any money from it and they didn't really mean to do it, they're likely not going to suffer a monetary penalty. And that's the key to those factors under clause 20.
And the last thing, barring all of that, should all of those safety valves for the honest mistake fail and they don't like the decision of the CRTC, they can appeal the CRTC's decision in the Federal Court and get another day in court.