Archive for the 'Marketing' Category
December 18, 2012
Earlier today, the Canadian Transportation Agency (CTA) launched a new site for the new all-inclusive air price advertising (see: All-Inclusive Air Price Advertising), in advance of new regulations that will be published in the Canada Gazette (on January 2, 2013).
This new website, and upcoming regulations, has been the result of about two years work and consultations to address consumer concerns regarding airline advertising in Canada, particularly price advertising.
The new framework and regulations also reflect a wider enforcement trend in Canada, including by the federal Competition Bureau, for more complete and up-front price advertising (as well as increased enforcement scrutiny on other key advertising areas including the general impression of advertising, disclaimers, performance claims and effective disclosure in the context of mobile devices and other new media).
According to the CTA, the new regulations are meant to achieve two broad objectives: to better allow consumers to determine total airline fares (and compare airline offerings) and promote fair competition between air carriers (creating a “level playing field for [all airline advertisers] for travel within, or originating in Canada”).
The new regulations will apply to any person that advertises air prices to the public (for travel in or originating in Canada), through interactive or non-interactive media (apparently an effort to keep the scope of communication technology neutral) and will include the following:
1. The total price, including all taxes, fees and charges.
2. A minimum level of disclosure for services offered (including points of origin/destination, whether a flight is one way or return, and any booking or travel availability periods)
3. Access to a breakdown of fees, taxes and charges and any optional services offered for additional charges.
December 17, 2012
CANADIAN CONTEST RULES/PRECEDENTS
Do you need contest rules/precedents
for a Canadian contest?
We offer many types of Canadian contest/sweepstakes law precedents and forms (i.e., Canadian contest/sweepstakes law precedents to run common types of contests in Canada). These include precedents for random draw contests (i.e., where winners are chosen by random draw), skill contests (e.g., essay, photo or other types of contests where entrants submit content that is judged to enter the contest or for additional entries), trip contests and more. Also available are individual Canadian contest/sweepstakes precedents, including short rules (“mini-rules”), long rules, winner releases and a Canadian contest law checklist. For more information or to order, see: Canadian Contest Law Forms/Precedents. If you would like to discuss legal advice in relation to your contest or other promotion, contact us: Contact.
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In an interesting article published earlier today by the Vancouver Sun, the Sun is reporting an apparent dispute between an environmental group (Pacific Wild) and B.C. gaming officials in relation to a conclusion by gaming officials that a private wolf-kill contest does not require a permit.
November 28, 2012
In an interesting Ontario class action decision issued on November 16th, the Ontario Superior Court of Justice found George Brown College liable, among other things, for violating the Ontario Consumer Protection Act (“CPA”) in relation to representations in a college course calendar about a graduate business program (George Brown’s International Business Management Program).
The student plaintiffs in this case alleged that George Brown failed to deliver what was promised for their program: the ability to obtain three particular industry designations in addition to the college’s certificate. The program stated that students could “complete three industrial designations/certifications in addition to the George Brown College Graduate Certificate” which were in fact not available without additional courses and fees.
George Brown took the position that students received what promised – a George Brown graduate certificate and opportunity to complete the industry accreditations in the future – insisting “there was nothing inaccurate” in its program description and denied liability. The school’s view was also that reasonable students that diligently researched industry websites would have understood that George Brown was only offering a preparatory platform for the future completion of the three listed designations.
The plaintiff students initially filed a complaint to their program advisor after which, when unsuccessful, they commenced a class action founded on negligent misrepresentation, breach of contract and violations of the CPA.
In assessing the students’ claim, the Court found that the students’ interpretation of the course description was reasonable, and that they were right to assume that they would graduate not only with the George Brown graduate certificate but also the three stated industry designations/certifications (or on a more nuanced interpretation, at least the required courses for the designations).
The Court held that on a plain reading of the description, the reasonable interpretation was that students could complete courses to obtain the designations, not merely an “opportunity to advance to complete”. The Court also found that if qualifications were necessary, such as the fact that the program only provided “preparation” for future accreditations, it could easily have said so.
November 24, 2012
On November 23, 2012, the U.K. Office of Fair Trading (OFT) announced that it had written to 100 leading price comparison websites (“PCWs”) asking that they take steps to ensure they were providing clear information to consumers (see: here). In making the announcement, which followed a detailed Review of Price Comparison Websites, the OFT said:
“The OFT has written to 100 leading price comparison websites asking them to ensure they are providing clear information to consumers, after a review published today by the OFT suggested that some sites could do more to improve trust amongst the public.
The review says that in general, price comparison websites have represented a major step forward for consumers, enabling them to secure better value when buying goods and services, but that some people are missing out on potential savings because of a lack of trust. The review also says that the role of such sites is likely to become even more important in the future as online sales continue to grow and initiatives such as the Government’s ‘midata’ project put more information in consumers’ hands.
As part of its review, the OFT conducted a web sweep of 55 price comparison sites which found that a number of sites could improve their privacy policies and their complaints and redress processes. It also identified scope for some sites to provide greater clarity about the way search results are presented, and clear identification of the business operating the website.”
Some of the specific issues considered by the OFT in its Price Comparison Website Report include privacy (e.g., the collection of customer information relating to searches and disclosure and use of information), transparency of information (e.g., how searches are ranked, commercial relationships between comparison sites and vendors and the proportion of the market searched) and complaints and exclusions of liability (e.g., clarity of complaints policies and scope of exclusions of liability).
Recommendations made by the OFT to PCWs include ensuring that privacy policies are clear; being clear about how search results are presented; being clear about the nature of the search; ensuring that there is a clear complaint and redress process; and ensuring clear identification of the website’s operator. The OFT also issued “six top tips” for consumers to keep in mind for price comparison sites.
In Canada, like other jurisdictions, comparative advertising can be a perfectly legitimate and consumer enhancing advertising strategy. It can also, however, in some instances raise issues including misleading advertising (or performance claim), defamation or intellectual property concerns – for example, the recent Rogers performance claims case involving a challenge by the Bureau of Rogers for comparative cell phone reliability claims made by Rogers.
November 14, 2012
CANADIAN CONTEST RULES/PRECEDENTS
Do you need contest rules and forms for a Canadian contest/sweepstakes? I offer a selection of Canadian contest rules and forms for random draw, skill and other common types of Canadian contests (i.e., contest precedents and forms). For more information see Canadian Contest Forms/Precedents.
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In what I think was the most tragic legal story I saw today – in terms of human nature and near financial gain (but not quite) though not perhaps true human tragedy – the Montreal Gazette reported that a Quebec court has denied a lottery player’s claim to a $27 million jackpot – for a seven second delay in buying his ticket.
November 8, 2012
Guest post by Christine Duhaime (Duhaime Law)
Defamation by Tweet?
In one of BC’s first ever Twitter defamation actions, RCMP officer James Brown, has filed a civil claim against a Vancouver lawyer and three other defendants over, among other things, sexual, or sexually-related content disseminated over the Internet, including on Twitter.
And I think he’s likely to win his case if he can prove that the statements were published and the defendants were the authors of those statements.
Alleged Defamatory Statements
Brown filed a Notice of Civil Claim in the Supreme Court of British Columbia is which he alleges that (note that these are just allegations as against the defendants and also that the statements allegedly published by the defendants are also just allegations as against Brown):
A defendant named Grant Wakefield created false profiles on a website called Fetlife (as in fetish life) to obtain sexual photographs and postings uploaded by Brown on Fetlife;
Wakefield and two other John Doe defendants (the “John Does”) provided Brown’s Fetlife material to the media;
Wakefield and the John Does provided other images to the media depicting sexual attacks on women that they alleged were images of Brown;
The Vancouver Sun and other media outlets published the Fetlife and the other material that was allegedly provided by Wakefield and the John Does, although many later issued retractions in respect thereof;
During a period of three days, Wakefield and the John Does wrote several Tweets using pseudonyms to the effect, inter alia, that Brown: (a) was silencing victims; (b) attended the illegal bar operated by convicted killer Robert Pickton; (c) was connected to convicted killer Robert Pickton; (d) was corrupt; (e) was charged with three cases of sexual assault; and (f) received tax funding to silence witnesses and victims;
In an email to a magazine, Wakefield and the John Does stated that Brown had sexually assaulted young women and was friends with convicted killer Robert Pickton;
In the month of August 2012, Wakefield and the John Does posted allegations similar to those above on several blogs;
In July 2012, another defendant, a Vancouver lawyer named Cameron Ward posted comments on his law firm website in which he stated that in its header that Brown: (a) is a sexual sadist; and in the content of the post, that Brown: (b) is a sexual deviant; and (c) was connected to Pickton; and
In August and October 2012, Ward posted additional comments on his law firm website about Brown which were defamatory, including copies of emails sent to counsel for the Missing Women Commission of Inquiry regarding Brown.
Brown is seeking an injunction to stop the defendants and everyone else from continuing to write, print or publish any libelous material concerning him and he is seeking general, special, aggravated and punitive damages against the defendants.
Defamation in Canada
Why might Brown win his defamation claim? If he can tie the statements to one or more of the defendants, he may succeed in his claim because in Canada, in order to establish a claim in defamation, Brown only has to prove three things, namely that the words: (i) were defamatory (they would tend to lower Brown’s reputation in the eyes of a reasonable person – this means the judge who assumes he/she is reasonable); (ii) referred to Brown; and (iii) were published or communicated to at least one person other than Brown.
According to the Notice of Civil Claim, the offending content about Brown is still available on the Internet and some refer specifically to him. If that is true, he has already established two of the elements of the tort. His lawyers just need to prove that the words would lower Brown’s reputation in the eyes of a reasonable person. If the allegations in the Notice of Civil Claim are accurate, that would seem easy enough. Some of the statements are clearly repugnant, including allegations that Brown sexually assaulted a young woman (e.g., is a criminal), and was connected to and friends with convicted serial killer Robert Pickton.
Late last month, the Federal Privacy Commissioner and Alberta and British Columbia Information and Privacy Commissioners issued new privacy guidelines for mobile app developers to assist them in complying with Canadian privacy laws. In making the announcement, the Federal Privacy Commissioner’s office said:
“The mobile era has led to the placing of an increasing amount of personal data such as contacts, photos, emails and texts onto one device, which can be tracked in real time. As a result, mobile apps may not just provide users with unparalleled information and fun at their fingertips, but also hold the potential for comprehensive individual surveillance. A recent study showed that privacy concerns are swaying consumer choices. In September, the Pew Research Center released a report finding 57 per cent of users surveyed had either dropped or avoided installing an app over concerns about use of their personal information.”
The new privacy guidelines for app developers are generally structured around the following five core principles: accountability, transparency, collection, meaningful consent in the context of small screens and user notices and timing of consent.
Best Practices Checklist
More specifically, the guidelines provide a detailed discussion of the types of potential privacy issues that the Federal and Provincial privacy authorities see in relation to the rapidly developing mobile app industry and the following best practices checklist (a sort of do’s and don’ts privacy compliance list for app developers):
You are accountable for your conduct and your code
Your company, which may just be you, is responsible for all personal information collected, used and disclosed by your mobile app.
Make sure to have controls in place, such as contracts or user agreements, to ensure that third parties accessing personal information through your app are respecting their privacy obligations.
Map out where the information is going and identify potential privacy risks.
In an interesting announcement made earlier today, Canada’s Federal Privacy Commissioner Jennifer Stoddart issued new privacy guidance for videogames. In making the announcement, the Privacy Commmissioner said:
“Today, while they may be playing in the basement, they’re very likely doing so with others, whether they’re friends from around the block or virtual ones around the world. ‘As gaming consoles are now onramps to the Internet, we need to recognize that, like anything else that brings together personal information and connectivity, there are privacy issues at play … Interactive gaming accounts are increasingly becoming linked to social networks while videogames today are also avenues for advertisers to youth.’”
The Federal Privacy Commissioner’s new videogame play guidance includes information on the collection of personal information from gamers, providing credit card information, privacy controls, linked profiles over online networks and protecting personal information and profiles online.
The Privacy Commissioner also provides the following guidelines for online videogame play:
– Given that personal information is part of many gaming profiles, it is best to use strong passwords (e.g., capital and small letters, numbers and symbols);
– As most user accounts require credit card information, players should check their statements regularly and contact the gaming company or console service immediately for transaction issues;
– When consoles or individual games offer detailed privacy controls, users should examine them closely and choose wisely (e.g., users may opt to restrict profile visibility only to players who they actually know in real life);
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
