Archive for the 'News' Category
CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
************
January 4, 2013
On January 4, 2013, Industry Canada issued revised draft regulations (Electronic Commerce Protection Regulations) for Canada’s upcoming anti-spam legislation (“CASL”). The revised regulations will be subject to comment until February 4, 2013 and generally clarify certain key CASL definitions and exceptions and add some new exceptions. Some of the key aspects of the new draft regulations include:
January 4, 2013
On January 4, 2013, Ontario’s consumer protection agency (the Ministry of Consumer Services) announced that it is planning to regulate debt settlement companies and issued proposed regulatory changes for public comments. In making the announcement, Ontario’s Minister of Consumer Services said:
“There is evidence of harmful practices used by some debt settlement companies and that is why our government is taking steps to protect consumers. We want to put a stop to abusive practices in the marketplace. Consumers should know their rights before they sign contracts and they should not make any payments until they get results.”
The new regulations, which according to the Ministry are intended to protect Ontario consumers from “exaggerated claims and abusive practices”, may include regulations to: (i) prevent debt settlement companies from charging up-front fees, (ii) limiting the fees debt settlement companies can charge consumers, (iii) require clear and transparent contracts (clear disclosure of key contract terms including fees, services and conditions) and (iv) require a ten-day cooling-off period.
The new rules would apply to for-profit and not-for-profit operators offering to arrange debt settlements for consumers and would be subject to existing Ontario consumer protection laws (e.g., the Collection Agencies Act and Consumer Protection Act). The planned new rules would also apply to traditional debt management plans offered through credit counseling services.
January 2, 2013
In an interesting case decided just before the holidays, which I fleetingly Tweeted, the Supreme Court of British Columbia denied an attempt by TELUS to block seasonal advertising by newcomer Mobilicity (see: TELUS Communications Company v. Mobilicity). Now that I’ve had my fill of Christmas turkey, I’ve had a chance to take a look at the decision which, though brief, includes a few interesting points.
In this case, TELUS’ challenge focused on three Mobilicity television advertising claims:
1. That Mobilicity’s competitors (including TELUS) make deceptive offers to customers, including offers of “unlimited plans” (when in fact their plans are limited to “after 6 PM evenings and weekends”);
2. That Mobilicity offers customers wireless services with “no contracts” (when Mobilicity does in fact require contracts); and
3. That Mobilicity offers “unlimited data” plans (when its plans are subject to a fair use policy that can limit speed).
TELUS sought an interlocutory injunction stopping Mobilicity from continuing with its claims through the end of December, arguing that the claims violated section 52 of the Competition Act (the criminal misleading advertising provision of the Act, which allows civil damages actions).
In denying TELUS’ injunction application, the Court reviewed the availability of injunctions under the Competition Act, the test for granting interlocutory injunctions and made several interesting comments relating to the interpretation of advertising for the misleading advertising provisions of the Act (and the balance between the need for accurate advertising and free speech).
As a threshold matter, the Court reiterated the BC Court of Appeal’s holding in earlier TELUS litigation in 2009 that the private action provision of the Competition Act, which speaks only of compensatory damages (i.e., the ability for private plaintiffs to recover actual loss or damage suffered) does not prevent the Supreme Court from exercising its inherent jurisdiction to grant injunctions.
December 28, 2012
I am pleased to be a panelist for an upcoming Canadian/U.S. advertising law webinar hosted by Strafford on January 8, 2013: Key Canadian Advertising and Competition Law Compliance Strategies.
Description
The Canadian Competition Act contains civil and criminal prohibitions on misleading representations and regulates specific types of advertising and marketing practices. Violations can lead to “administrative monetary penalties” of up to $10 million and court orders to cease conduct and compensate consumers (restitution).
The Competition Bureau has ramped up enforcement efforts. Recent Bureau and private litigation challenges include price and performance claims, use of disclaimers and the application and scope of the “general impression test”. Developments include increased sectoral regulation and federal anti-spam legislation.
To effectively minimize legal risk, marketers and advertisers in Canada need to know the basic rules that apply to price and performance claims, sales and other promotions (including contests), disclaimers, electronic marketing and the enforcement agencies’ evolving approach to new technologies.
Listen as our panel of Canadian and U.S. attorneys provide a guide to important competition compliance rules for counsel to companies and associations conducting advertising and marketing operations in Canada. Panelists will review current litigation and Competition Bureau enforcement developments and provide practical compliance guidelines to avoid triggering allegations of misleading representations.
The panel will review these and other key questions: what types of representations are currently under heavy scrutiny by the Competition Bureau?; how should marketers prepare for the federal anti-spam legislation expected in 2013?; what kinds of safeguards are needed to ensure that price, performance or comparative claims or the use of disclaimers do not violate the Competition Act?
December 21, 2012
The American Bar Association today published the December edition of The Antitrust Source. This edition includes articles on:
“FTC Monetary Remedies and the Limits of Antitrust”; “Deciphering the Compliance Obligations Around the EU’s Cookie Directive”; “Maximizing Efficiencies: Getting Credit Where Credit is Due”; “An Overview of the FTC’s New and Improved Green Guides”; and a book review of The Economics of Collusion – Cartels and Bidding Rings.
December 21, 2012
The National Centre for Business Law will be hosting an upcoming seminar on Libor on January 8th entitled: “The World’s Most Important Number: How a Web of Incentives, Hierarchies and Legal Compliance Cultures Conspired to Undermine Libor”, with guest speaker Eric Talley, Rosalinde and Arthur Gilbert Professor of Law and Faculty Director, Berkeley Center for Law, Business and the Economy.
From the National Centre for Business Law:
“To many observers, the recent scandal surrounding manipulations of the London Interbank Offering Rate (LIBOR) may go down as one of the most significant and far reaching events associated with the global financial crisis. Literally hundreds of trillions of dollars’ worth of global financial contracts – ranging from mortgages to credit cards to corporate debt securities to financial derivatives – hinge critically upon LIBOR to peg the financial obligations of the parties. This essay offers some preliminary thoughts on how best to reorganize and design benchmark financial measures in the presence of self-interested and often short-sighted regulators, participating banks, and general market participants. Given these constraints, should we impose further top-down regulation on the rate-setting process at all, and if so, how? Should we instead depend on ex post liability to provide incentives, and if so, how would such a liability system work? Or, should we limit intervention to identifying more reliable market-mediated alternatives to LIBOR — ones that would be less susceptible to manipulation, but also less responsive-to-government-regulatory-policies?”
December 20, 2012
The Asian Competition Forum has posted the papers from its recent 8th Annual Asian Competition Law Conference (2012). In a rather impressive showing, contributions relating to China, Hong Kong, India, Japan, Singapore and others include papers and presentations on:
Setting Up a New Competition Regime: the Indian Experience
The Tasks and Challenges of Enforcing the Hong Kong Competition Ordinance
The Role of the Media in Building a Competition Culture
Developing a Culture of Competition
Priority Setting in Competition Law – the Australian Experience
Establishing Sound Enforcement Processes in China
December 20, 2012
Contested abuse of dominance (i.e., monopolization) cases used to be rather uncommon in Canada (with only a relative handful of contested cases having been commenced since the modern Competition Act was introduced in Canada in 1986). This paucity of cases appears to be changing, based on the Competition Bureau’s evident desire to increase the unilateral conduct jurisprudence in Canada.
Earlier today, and consistent with the Bureau’s recent increasing trend toward deterrence through enforcement, the Bureau announced that it had filed two new abuse of dominance applications against Ontario residential water heater suppliers Direct Energy Marketing Limited and Reliance Comfort Limited Partnership.
In making the announcement, relating to the first new abuse of dominance application since the Bureau commenced section 79 abuse proceedings against The Toronto Real Estate Board in 2011, the Bureau said:
“Following an extensive investigation, the Bureau determined that Direct Energy and Reliance each engaged in practices that intentionally suppress competition and restrict consumer choice. Specifically, each company implemented water heater return policies and procedures aimed at preventing consumers from switching to competitors. This anti-competitive conduct affects consumers, other rental water heater companies, and businesses that sell water heaters, such as home improvement centres.
Currently, when Direct Energy or Reliance customers wish to switch to another provider, they must contend with a number of practices and procedures intended to frustrate the return process for their rented water heaters, including: a requirement to call to obtain authorization to return a rented water heater; aggressive retention tactics during these calls; restrictions on when and where water heaters can be returned; and unwarranted fees and charges.”
The Bureau’s announcement comes several days after media reports that Reliance had commenced consumer protection and Competition Act proceedings against newcomer National Home Services for $60 million for allegedly deceptive marketing practices (see: $60 million lawsuit alleges unfair practices in water heater rentals).
The Bureau is seeking orders from the Competition Tribunal for Direct and Reliance to stop conduct and also pay administrative monetary penalties totaling $25 million, the first time the Bureau has sought AMPs under the abuse of dominance provisions since they became available in 2009 (and consistent with other ongoing advertising cases in which the Bureau is also seeking the maximum penalties possible). $15 million is being sought against Direct because, according to the Bureau, this is the second proceeding that has been commenced against it (Direct’s predecessor Enbridge Services Inc., which was subject to a 10-year consent order – see: here).
The maximum AMPs under the Competition Act for abuse of dominance are $10 million, which may be increased to $15 million for subsequent orders. Following recently updated Abuse of Dominance Guidelines (see: here), however, the factors for when the Bureau will seek AMPs for abuse of dominance (as well as the quantum) remains unclear. Factors that the Competition Tribunal may consider in determining AMPs include competitive effects of the conduct, revenues generated from the challenged practice, the financial position of the respondent and history of Competition Act compliance.
In the Bureau’s previous application against Enbridge (in 2002), the Bureau alleged that anti-competitive acts by Enbridge included certain “exit charges” and conditions for customers (preventing competitors from disconnecting and removing Enbridge water heaters, charging customers a fee for removal and charging an installation cost fee over a long 11 year period) and a “price match guarantee” (that the Bureau argued allowed the water heater supplier to selectively discount buy-out prices, preventing customers from switching to competing suppliers).
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
