Archive for August, 2012
In a curious twist in the growing dispute between the Alberta and British Columbia governments, stakeholders and individuals on either side of the environmental debate, with some political seesawing by the Federal Government thrown in, a British Columbia resident has recently alleged that Enbridge promotional videos for the proposed Northern Gateway pipeline were misleading.
According to media reports, the Vancouver Island resident filed a misleading advertising complaint with the Competition Bureau alleging that Enbridge promotional videos for its proposed Northern Gateway pipeline project omitted more than 1,000 square kilometers of islands along the proposed Northern Gateway tanker route (see e.g.: BC woman files complaint against Enbridge for misleading promotional videos). According to the complainant, Enbridge allegedly “distorted the maps in its promotional videos to erase numerous islands and twisting passages so that [the] tanker route appears much safer than it is”.
To some, it won’t be intuitively obvious why the Competition Act should apply, if true, to omissions of some BC terrain from videos for a pipeline – after all, Enbridge is not selling pipelines or tanker routes to Canadians.
The Competition Act does, however, cast a fairly wide net in terms of what may be false or misleading and a wide variety of claims have been challenged over the years under the “general misleading advertising” provisions of the Act, which prohibit not only false or misleading claims to market products (i.e., goods or services) but also “any business interest”.
In this regard, in one recent high-profile case, Commissioner of Competition v. Yellow Page Marketing, the Ontario Superior Court both reiterated that the Competition Act applies to false or misleading claims made to promote business interests and also that the phrase “business interest” should be liberally interpreted:
“Similar misrepresentations appear in the respondents’ domain names, invoices, reminder notices and letters sent by the respondents. Although the respondents argue that collection efforts after the contract had been completed were not to increase sales, the relevant provision of the Competition Act refers to promoting ‘any business interest’ and not just sales. The phrase ‘business interest’ must be given a wide meaning and collecting money, and threats made in relation to collection efforts, constitute promotion of the respondents’ business interests.”
One of the most colorful, if somewhat older, cases in which the misleading advertising provisions of the Act were invoked to challenge claims in relation to business interests was the Bre-X case. Plaintiffs in Bre-X claimed that that the publication of resource calculations, other data, reports and studies relating to Bre-X Mineral’s Indonesian mining assets breached the criminal misleading advertising provisions of the Competition Act, thereby giving rise to a civil cause of action.
The C.D. Howe Institute is hosting a roundtable in Toronto on November 16th with Simon Kennedy, Director of Investments (Industry Canada):
“Simon Kennedy is the Senior Associate Deputy Minister of Industry Canada, a position to which he was appointed in September 1, 2010. In this role, he works closely with the Deputy Minister to manage this federal government department, overseeing policies and programs of importance to Canada’s national competitiveness. One of his key roles at Industry Canada is Director of Investments under the Investment Canada Act, making him responsible for the administration of Canada’s foreign investment review process.
In February 2011, Mr. Kennedy was named by the Prime Minister as his representative to the bi-national Canada-U.S. Beyond the Border Working Group, which developed the Action Plan for Perimeter Security and Economic Competitiveness released by the Prime Minister and the President of the United States on December 7, 2011. Mr. Kennedy led the negotiation of the Action Plan with White House counterparts and the cross-Canada consultations with stakeholders. He resumed full time his duties at Industry Canada following the release of the Action Plan.”
The U.S. Word of Mouth Marketing Association (“WOMMA”) published earlier today a new edition of its Social Media Marketing Disclosure Guide (see: The WOMMA Guide to Disclosure in Social Media Marketing).
From WOMMA:
“As part of WOMMA’s continuing effort to advance and advocate ethical word of mouth, WOMMA has updated our social media marketing disclosure guide that highlights best practices and responsibilities of using social media.
The WOMMA Ethics Code is the cornerstone for prudent practices in the WOM industry. In light of the December 2009 effective date of the Federal Trade Commission (FTC) Guides Concerning the Use of Endorsements and Testimonials in Advertising, WOMMA leadership responded to member demand for additional disclosures for social media marketing. This is a continuation of an effort started in 2008 when WOMMA began formalizing best practices by engaging industry leaders, members, nonmembers, academics and consumers.
These guidelines are considered living documents and are updated on occasion to reflect changes in regulation and in the marketplace.
…
Scope of WOMMA Social Media Disclosure GUIDE
As social media is ever-changing, the WOMMA Social Media Disclosure Guide will be a living document – continuing to be refined to reflect evolving industry best practices. Note also that many WOMMA programs are hybrid in nature and are developed to incentivize traditional (offline) as well as digital and social initiatives. While the mechanics of these types of conversation might be different, the expectation is that such communications should be consistently ethical and credible, both in the online and offline environment. Key online platforms covered in this Guide include, but are not limited to blogs (eg., Blogger, WordPress), microblogs (e.g., Twitter, Pinterest), online comments (e.g., Disqus), social networks (e.g., Facebook, LinkedIn, Bebo, Hi5), video sharing websites (e.g., YouTube, Vimeo), photo sharing websites (e.g., Flickr, Picasa, Pinterest), curated content (Storify.com, Paper.li, Scoop.it), sponsored content, affiliate networks, referral networks and podcasts. Note, platform names are for example only and may be updated from time to time as new platforms and types emerge or evolve.
MIT Press has (recently) published a new text on cartels and bidding rings entitled The Economics of Collusion (Robert C. Marshall and Leslie M. Marx authors). From MIT Press:
“Explicit collusion is an agreement among competitors to suppress rivalry that relies on inter-firm communication and/or transfers. Rivalry between competitors erodes profits; the suppression of rivalry through collusion is one avenue by which firms can enhance profits. Many cartels and bidding rings function for years in a stable and peaceful manner despite the illegality of their agreements and incentives for deviation by their members. In The Economics of Collusion, Robert Marshall and Leslie Marx offer an examination of collusive behavior: what it is, why it is profitable, how it is implemented, and how it might be detected.
Marshall and Marx, who have studied collusion extensively for two decades, begin with three narratives: the organization and implementation of a cartel, the organization and implementation of a bidding ring, and a parent company’s efforts to detect collusion by its divisions. These accounts–fictitious, but rooted in the inner workings and details from actual cases–offer a novel and engaging way for the reader to understand the basics of collusive behavior. The narratives are followed by detailed economic analyses of cartels, bidding rings, and detection.
The narratives offer an engaging entrée to the more rigorous economic discussion that follows. The book is accessible to any reader who understands basic economic reasoning. Mathematical material is flagged with asterisks.”
The C.D. Howe Institute has published a new report entitled “From Living Well to Working Well: Raising Canada’s Performance in Non-residential Investment”:
“Business investment in Canada is picking up relative to its international peers, but underlying problems remain, according to a report released by the C.D. Howe Institute. In ‘From Living Well to Working Well: Raising Canada’s Performance in Non-residential Investment,’ authors Benjamin Dachis and William B.P. Robson identify widely divergent performances by provinces and a surge in the flow of funds to the residential sector away from the non-residential sector as problems to be addressed by policy reforms. ‘Policies that enhance competition and remove biases against non-residential investment could boost capital spending by businesses and improve Canadian workers’ prospects for higher incomes,’ said Benjamin Dachis, Senior Policy Analyst.”
The Institute of Competition Law has published a new edition of its e-Competitions Bulletin.
Its new issue includes articles by Damien Gerard (“The Belgian Supreme Court upholds the severability of anticompetitive provisions in a distribution agreement”), Christopher Sagers (“A U.S. Court of Appeal unanimously expands extraterritorial reach of U.S. antitrust rules in a foreign price-fixing conspiracy case”), Danilo Sama (“The Italian Competition Authority fines three operators in the Southern Italian electric market for undertaking a concerted practice aimed at sharing the market for certain dispatch services”), Tomas Cihula (“The Czech Supreme court confirms the supermarket cartel decision”), Eszter Ritter (“The Hungarian Supreme Court confirms the supermarket cartel decision”), Gavin Benjamin Bushell (“The EU Advocate General Mazak issues his opinion recommending dismissing appeal against pharma company’s abuse of dominance”), Alessandro Romano (“An Italian civil court rejects to dispose the delay of a new product launch for patent infringement claim and assumes a leading competitor’s abuse of dominant position as refusal to license”), Michal Miko (“The Antimonopolly Office of the Slovak Republic fines electricity distribution company for abuse of a dominant position by charging excessive prices for electricity mastering”), Erlind Kodhelaj (“The Albanian Competition Authority submits for comments new draft guidelines on the control of concentrations involving undertakings”), Michele Giannino (“The Italian Competition Authority conditionally clears an airline merger by imposing a slot divestiture remedy”) and Marc Waha (“The Hong Kong Legislative Council Introduces a cross-sector competition law regime”).
We are pleased to have re-launched a new version of our Canadian Advertising and Marketing Law blog, which includes overviews of the key areas of Canadian advertising and marketing law, an Advertising Alphabet (a glossary of key Canadian advertising and marketing law terms) and recent Canadian advertising and marketing law news and trends.
To visit our new site see: Canadian Advertising & Marketing Law
Canadian advertising and marketing law is rather active just now – current and recent cases include the Rogers performance claims case (involving challenges to the performance claims provisions of the Competition Act), Richard v. Time (a deceptive contest mail-out case in which the Supreme Court of Canada considered the meaning of the “general impression test” for the purposes of the Quebec Consumer Protection Act), the Bell advertising case (which involved allegations by the Competition Bureau that certain price claims by Bell were false or misleading, and not cured by disclaimers) and the landmark Yellow Pages case (in which over C $9 million in penalties were ordered to be paid by companies and individuals involved in marketing claims ostensibly asking companies to confirm contact information in fax marketing, when in fact fine print disclaimers signed companies new contracts with significant fees). There has also been a considerable amount of sectoral regulation activity, including in the airline and cell phone industries.
The American Bar Association’s Section of International Law has issued a call for articles for three upcoming issues of its International Law News on the topics of “International Anti-Bribery Compliance and Investigation” (deadline: October 22, 2012), “Diversity Challenges in the Modern World” (deadline: December 10, 2012) and “Current Issues in International Commercial Transactions (including Mergers and Acquisitions)”.
About International Law News:
“A key purpose of the Section newsletter, the International Law News, is to keep Section members informed about current international law developments and important Section news. The ILN publishes articles on breaking issues for practitioners in the international arena to assist them in gaining helpful insights into the hot issues and obtaining concrete, how-to advice on practicing international law in the marketplace. The ILN also publishes regular columns on public and private law initiatives, survival guides to cities, and pros and cons columns on breaking issues of general interest. The ILN is intended to give practitioners helpful insights and guide lines to doing business in the international arena. Articles should be short (2,000 words maximum) and comprehensible to non-specialists.”
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
