Canada Announces Coming Into Force of Federal Anti-spam Law: New Obligations & Insight Into the New Law
December 4, 2013
In a long anticipated announcement, or dreaded, depending on your perspective, the Federal Government announced earlier today that the coming into force date for most of Canada’s Federal anti-spam legislation (“CASL”) would be July 1, 2014.
Some portions of CASL, relating to the unsolicited installation of computer programs and software, will come into force slightly later on January 15, 2015. Also, apparently based on industry push-back, the private right of action provisions of CASL will come into force on July 1, 2017 (so class action counsel will have to hang on for a further while before starting their spam-related civil suit engines). For my overview of the rules as they stood before the announcement today see: here (some updating will be needed, as there have been a number of changes and clarifications in today’s announcement).
In making the announcement, Canada’s Industry Minister James Moore said:
“Our government does not believe Canadians should receive emails they do not want or did not ask to receive. … These legislative measures will protect consumers from spam and other threats that lead to harassment, identity theft and fraud. We are prohibiting unsolicited text messages, including cellphone spam, and giving Canadian businesses clarity so they can continue to compete in the online marketplace.”
While the legislation was originally passed in 2010, it has been stalled through a series of delays that have included significant industry opposition and multiple rounds of Industry Canada and CRTC regulation drafting and consultations.
Final Regulations & Regulatory Impact Analysis Statement
Along with today’s announcement, the Government also issued final Regulations, a Regulatory Impact Analysis Statement and an Explanatory Note (see the Government’s “fightspam.gc.ca” website: here). These final Regulations follow two prior drafts issued in July, 2011 and January, 2013.
The final Regulations, among other things: (i) define key terms for exceptions from the rules (e.g., the scope of personal and family relationships); (ii) set out categories of exempt business-to-business communications (e.g., sent within an organization or between organizations with an existing relationship); (iii) set out categories of exempt organizations (e.g., charities and political parties); (iv) the required nexus to Canada (messages sent from Canada or accessed in Canada); and (v) provide a consent exclusion for third party referrals, provided certain guidelines are followed.
The legislation, when it finally comes fully into force (there will be a three year transition period), will mean that a significant segment of “commercial electronic messages” or “CEMs” will require advance opt-in written consent before they may legally be sent and that CEMs comply with certain form (i.e., content) requirements, including sender ID information and prescribed unsubscribe mechanisms.
December 3, 2013
The National Competition Law Section of the Canadian Bar Association (CBA) has issued a call for papers for the Fall 2014 edition of its peer-reviewed journal Canadian Competition Law Review. Submissions are due by March 15, 2014 for the Fall edition.
From the CBA:
“The Canadian Competition Law Review (formerly the Canadian Competition Record) is published twice a year by the Canadian Bar Association National Competition Law Section. The Can Comp L Rev welcomes submissions of original articles, case comments, book reviews, and essays on significant current issues of competition law and economics in French or English. Submissions are subjected to an editorial review process and are peer-reviewed by selected scholars and practitioners before acceptance for publication. Submissions are only accepted electronically at the following address: firstname.lastname@example.org by March 15, 2014 for consideration for the Fall edition.”
For more information and submission details see: Call for Papers: Canadian Competition Law Review.
December 3, 2013
Canada’s national not-for-profit advertising self-regulatory body Advertising Standards Canada (ASC) has released a new report on Canadian consumers’ views on advertising, entitled 2013 Consumer Perspectives on Advertising.
Top of the list of advertising annoyances for Canadian consumers?: misleading advertising (significantly more than other issues, such as offensive advertising – 85% for misleading claims versus 15% for offensive ads).
Perhaps more sobering for brands, according to the new ASC report, is that 92% of Canadians surveyed said that they would likely stop purchasing a product or service if a company ran false, misleading or offensive advertising.
Also interesting, the new ASC report found that top of the list so to speak of misleading advertising issues included: false “free” product claims (i.e., where there are additional fees); hidden costs; spiffing up product performance (e.g., through image-altering software); and false performance claims in general.
Perhaps not surprisingly, presumably based on the types of consumer complaint received, several of these, including false performance claims and hidden fees, remain advertising law enforcement priorities for the Competition Bureau.
For a copy of the ASC’s new report, see: 2013 Consumer Perspectives on Advertising.
November 27, 2013
Looking for a (perhaps slightly dark) entertaining read about popular scams? On November 1st the Canadian Competition Bureau updated its Little Black Book of Scams.
This apparently very popular Bureau publication, first adopted by the Bureau from the Australian ACCC’s similar publication, includes discussions of current and popular Internet, telemarketing and direct mail frauds and scams including phony contests, deceptive prize notices, pyramid selling schemes, mobile phone scams, romance scams and more.
Fraud and scams, it seems, keep on rolling along, with many tried and true formulas (fraudulent business directory and deceptive prize notice scams for instance) still evidently working and effective in duping businesses and consumers.
All dark humor aside, this Bureau resource is really quite good and helps businesses and consumers determine the line between legitimate promotions and marketing that may violate the civil or criminal provisions of the Competition Act, Criminal Code or other legislation.
November 21, 2013
Contests continue to be a popular and engaging way to promote brands, events, product launches and other things. Whether a random draw contest, consumer generated promotion or other type, promotional contests are great for buzz, traffic and attention.
Based on continued demand I’m pleased to offer a new Canadian contest forms package to add to my existing contest forms for Facebook “Like” contests.
Facebook recently made running contests on Facebook easier (see: It’s Now Easier to Administer Promotions on Facebook) and Facebook’s Promotions Rules, part of Facebook’s Page Terms, are now less stringent.
To purchase my new Facebook “Like” contest forms package or to see other Canadian contest form packages available see: Canadian Contest Forms.
For more about Canadian contest law see: Canadian Contest Law & Tips for Running a Successful Contest in Canada.
November 21, 2013
Canada’s (relatively new now) Commissioner of Competition is on the road at the moment, having delivered remarks yesterday in India. In a short but focused speech in Kashipur India, the Commissioner focused quite a bit on the history of Canadian competition law, the importance of competition to an effective economy and compliance.
A concept called “shared compliance” (i.e., between the Competition Bureau, legal community and marketplace participants) has been one of the new Commissioner’s recent turns of phrases, and it was central again in his remarks yesterday in India. In emphasizing the benefits of competition compliance and the obligation for companies and other organizations to adopt credible and effective competition law compliance programs, the Commissioner said:
“Getting back to compliance — by now, companies should be well aware of the potential for loss of reputation and damage to carefully cultivated brands that can result from the failure to comply with competition laws. In order to ensure compliance, companies must be aware of the competition legislation and regulations that apply to them and also of the approach that their competition authority undertakes to apply these laws.
It is incumbent on companies to keep abreast of what their competition authority is doing. As the saying goes, ignorance of the law is no excuse. The most effective way for a company to protect its business and its brand is to be aware of its respective competition authority’s practices, procedures and policies.”
In Canada, competition law compliance programs are not mandated by the federal Competition Act but the adoption of a “credible and effective” compliance program tailored to a particular company’s or other organization’s activities is a mainstay Competition Bureau and counsel recommendation.
Options for companies, associations and other organizations range from a full competition law compliance program (reflecting the Bureau’s five recommended elements in its Corporate Compliance Programs Bulletin – in the process of being updated) to more streamlined approaches, such as adopting guidelines, “do’s and don’ts” or other practical tools for company/association personnel and specific activities.
November 20, 2013
The U.S. CLE provider Strafford is hosting what I think looks like quite an interesting upcoming associations and information exchange related webinar entitled: Antitrust Risks of Association-Sponsored Market Research. “Information exchanges” (via surveys, member interaction, meetings, conventions, social media, other online fora, etc.) are of course a common and ubiquitous activity for most trade and professional associations, both in Canada and internationally. Given that they can also raise competition/antitrust law risk, however, with the potential issues in Canada and the U.S. being largely the same, this upcoming webinar caught my eye.
“Members rely on their associations to provide up-to-date market research data to help them and their companies remain competitive. Association market reports and surveys are often more comprehensive, accurate, and valuable than industry consultant reports or publicly available information.
While association market research programs provide a significant benefit to members, associations and their counsel must be mindful of the antitrust risks inherent in these information exchanges, including the potential for claims that the exchanges are used to coordinate member competitive decision-making.
Antitrust counsel should advise their association clients of the potential pitfalls with market research programs and guide them in developing information exchanges and survey procedures that comply with the antitrust laws and are likely to withstand government or private scrutiny.
Listen as our authoritative panel of attorneys, including a leading nonprofit lawyer and an antitrust attorney, reviews the key benefits of market research programs to associations, discusses recent developments in the antitrust laws applicable to information exchanges and benchmarking, and explains best practices to comply with antitrust laws.
Outline: Benefits of market research programs to associations; applicable antitrust laws; practical application of antitrust laws to market research programs; best practices to minimize antitrust liability.”
For more about associations and competition law, see: Associations and Competition Law.
For more about competition law and information exchanges, see: Information Exchanges.
U.S. Federal Trade Commission Gets Court Order to Stop Allegedly Canada-based Fraudulent “Yellow Pages” Directory Scheme
November 19, 2013
The U.S. Federal Trade Commission (FTC) announced that it has obtained a federal court order to temporarily halt the operations and freeze the assets of an alleged fraudulent Montreal-based “Yellow Pages” business directory scheme. In making the announcement, the FTC said:
“Hiding behind borders to scam churches and small businesses is a tactic that we’ve seen before. … Scammers need to know that we have great relationships with our law enforcement partners in Canada and, as this case shows, we can and will work together to protect our consumers.”
According to the FTC, this “Yellow Pages” business directory scheme called churches and small businesses pretending they were verifying or updating existing contact information and billed consumers $499.99 for directories never ordered. Some consumers paid thinking others in the organization had ordered a directory or based on pressure that they had entered into oral contracts. Consumers who ignored bills or refused to pay received collection calls, were charged interest or late fees and received threats of collection agency referral, credit card rating damage or legal action.
Like the earlier Canadian 2012 Yellow Page Marketing case (for my posts on that case see: here and here), the operators in this case may have been using a fairly common and tried and tested directory scam strategy (see: here, here, here and here for some descriptions). Some common elements from past fraudulent business directory cases include targeting small and medium sized businesses just large enough to not be certain whether other personnel have ordered a directory, seeking a relatively small amount from each target (though relying on volume to achieve significant returns), and making false or misleading claims that directories had been ordered, a prior business relationship existed or being associated with the legitimate Yellow Pages Group.
Despite the astonishing simplicity of this type of phony invoice scheme, they persist and in past cases have been remarkably effective in achieving significant revenues (in the Yellow Pages Marketing case for example, revenues of at least $5-7 million according to testimony before the Ontario Superior Court).