Archive for the 'Advertising' 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.
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March 7, 2013
Earlier today, the Federal Government posted comments that it has received to the proposed Industry Canada regulations under Canada’s pending federal anti-spam legislation (CASL). Revised Industry Canada regulations were posted in earlier January for public comments, based on significant industry push back to CASL and, in particular in relation to the proposed Industry Canada Regulations, narrow and arguably commercially unworkable exceptions to the legislation. More than 100 comments have been posted, from a variety of companies, associations, individuals and other organizations.
March 6, 2013
In addition to my contest law services, I offer Canadian contest forms and precedents for random draw and skill contests in Canada (excluding Quebec).
These Canadian contest forms are intended to bridge the gap between legal advice and forms on the web, which may not be current, accurate, reviewed by counsel or even intended for Canadian promotions (i.e., U.S. or international forms that do not include the key requirements to effectively operate a contest in Canada).
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CANADIAN CONTEST RULES & FORMS
Need contest rules and forms for a Canadian Contest? I offer a selection of Canadian contest rules and forms for common types of Canadian contests. For more information see: Contest Forms.
March 4, 2013
In a very interesting real estate sector development, the Real Estate Council of British Columbia has updated its advertising requirements for licensees under the British Columbia Real Estate Services Act (see: here and here). In making the announcement, the Council said that:
“Each month, the Real Estate Council receives a large number of complaints relating to licensee advertising. In order to reduce the number of complaints, the Council has developed the following information which is designed to assist licensees in creating advertisements that comply with the requirements set out in the Council Rules.”
Three BC Real Estate Council rules govern real estate salespersons’ advertising in BC: sections 4-6 (general advertising restrictions and requirements), 4-7 (which prohibits false or misleading advertising) and 4-8 (advertising in relation to specific real estate) (see: here). In general, these Council rules require licensees to make certain disclosure (e.g., brokerage name), prohibit false or misleading advertising and owner (or agent) consent for advertising specific property.
The Council’s new advertising guidelines, which, according to the Council are intended to “ensure that the public is neither misled nor confused as to who is providing real estate services and to ensure the accuracy of representations”, include a real estate advertising checklist (with common advertising problem areas), as well as information relating to specific types of advertising and issues including disclosure of the brokerage name, a “top six” list of advertising vehicles where the Council commonly finds licensee advertising violations (e.g., Facebook, Craigslist, Twitter and Google+), guidelines for Internet and social media advertising and a discussion of steps to take to avoid false or misleading advertising.
Some of the general guidance in the Council’s new guidelines that is consistent with the Competition Act’s misleading advertising rules include: ensuring that all representations are accurate and verifiable, disclosure of any conditions or limitations, ensuring that any performance type claims – for example, relating to business volume, honours/awards, etc. – are supported and the source of the supporting data disclosed.
February 28, 2013
The Continuing Legal Education Society of British Columbia (CLE BC) has published its annual Review of Law & Practice – 2013, including my joint Competition Law chapter (see: Annual Review of Law & Practice – 2013). Overview (from CLE BC):
“Discover the most efficient way to stay informed, with key developments in 33 practice areas. Each year, lawyers and other readers around the province turn to CLEBC’s Annual Review of Law & Practice to learn about the key developments and trends in British Columbia law. Thriving in its 22nd annual edition, Annual Review provides an easy, affordable, and reliable way to keep its readers on top of the pivotal issues and trends. This year’s edition is bigger and better than before, and introduces a new chapter on “Competition Law”. The book now contains 34 chapters packed with accessible commentary about the main legislative, case law, and practice changes in British Columbia. Chapters are written by BC lawyers who have recognized interests and knowledge in particular areas of law. All good reasons why, in British Columbia, Annual Review is the essential updating tool for the busy practitioner.”
My joint Competition Law chapter includes a summary of the 2012 developments in the major areas of Canadian competition law including: misleading advertising, mergers, the Investment Canada Act, abuse of dominance, criminal matters, private actions and new Competition Bureau guidelines.
February 27, 2013
This new global text on unfair competition caught my eye on my sweep of the web today: International Handbook on Unfair Competition, which includes chapters on major jurisdictions including Canada, the U.S., Australia, U.K., Brazil, China and a number of others. Abstract:
“Written by a worldwide team of experts, this new work surveys and comments on the unfair competition laws of the world’s leading economic powers. Following a standard pattern, each chapter introduces the reader to the latest developments in each jurisdiction, highlighting the ways in which the basic legislation and case law relates to enforcement issues, and how unfair competition laws fit with wider considerations of consumer protection and within prevailing intellectual property and competition law frameworks.
Each of the country reports follows the same standard structure: Background and General Approach to Unfair Competition Law; Legal Basis of Unfair Competition Law and Relations to Neighbouring Areas of Law; General Considerations; General Clause Against Unfair Competition; Marketing; Protection of Competitors Against Unfair Trade Practices; Specific Protection of Consumers Against Unfair Trade Practices; Enforcement.”
February 18, 2013
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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Canadian contest law can, to say the least, be perplexing to some. It’s a mix, at least usually, of competition law, the Criminal Code and contract law. As such, key Canadian contest legal requirements include mandatory Competition Act disclosure (“short rules”), avoiding the illegal lottery offences of the Criminal Code and taking common sense steps to make sure contest rules accurately reflect the promotion, are enforceable and give the maximum amount of latitude to promoters to deal with potential contingencies that may arise.
February 16, 2013
Earlier this month, the Ontario Court of Appeal dismissed an appeal in the Yellow Pages Marketing misleading advertising case (see: Competition Bureau v. Yellow Pages Marketing).
In this case, an individual found liable last year by the Ontario Superior Court to pay a $500,000 “administrative monetary penalty” or “AMP” for misleading advertising appealed the lower court’s judgment (see: here). The Ontario Superior Court had found a group of companies and individuals liable under the civil misleading advertising provisions of the Competition Act for sending deceptive faxes designed to lead recipients to believe that they were merely confirming online directory information for the legitimate Yellow Pages Group (“YPG”) when, in fact, the companies, that were unrelated to YPG, used fine print disclaimers to sign-up recipients to new two-year online directory contracts with significant fees.
In finding the companies and individuals liable, the Superior Court reviewed the relevant law under the civil misleading advertising provisions of the Competition Act, finding that the faxes were misleading, material and that fine print disclaimers used failed to cure otherwise misleading claims. The Court ordered penalties that included a ten-year prohibition order, compensation for consumers and more than $9 million in AMPs, including more than $1 million against individuals – the highest award to date in contested proceedings for a Canadian misleading advertising case.
On appeal, one individual appellant argued that he had been deprived of a fair hearing and opportunity to adduce evidence relevant to his defense, in particular evidence of a lack of involvement in the marketing practices and relevant to the Competition Act’s factors for determining the size of AMP to be imposed. The appellant also argued that the lower court hearing should have been adjourned to allow him to adequately protect himself.
In a short but interesting decision, the Court of Appeal rejected all of these arguments. With respect to evidence, the Court of Appeal found that the appellant chose not to file his own affidavit, affidavit evidence that had been filed addressed the appellant’s involvement in the misleading conduct and financial status and that it was, in any event, open to the lower court judge to decide what weight to give to the available evidence.
As to the fairness of the proceeding, the Court of Appeal found that there was no evidence that any concerns were raised about the evidence in the prior proceedings (or an adjournment requested) and that the lower court judge had no independent obligation to become involved in the presentation of the appellant’s case or evidence called. The Court of Appeal referred to these matters as the “exclusive domain of client and counsel”. The Court held that “other than in extraordinary circumstances such as when it is apparent that a conflict has arisen between a client and his or her counsel, the court should not, on its own accord, become involved in the actual presentation of the case.”
On liability, the Court of Appeal found that the lower court’s finding was “unassailable”, based on evidence the appellant knew the companies were making false and misleading representations, was aware of prior efforts to obtain compliance – for example, in the U.S. – and a 2010 Competition Bureau warning that had specifically been brought to his attention. In upholding the liability finding, the Court of Appeal also pointed to the appellant’s responsibility for complaints and key aspects of the companies’ deceptive marketing activities.
February 10, 2013
On February 6, 2013, the Competition Bureau released its submission responding to the CRTC’s Wireless Code Working Document issued on January 28th. In its submission, the Bureau takes issue with two main aspects of the CRTC’s proposed approach to a new wireless code: potential switching costs for consumers (including plan lengths) and advocating for effective disclosure of key terms, particularly price and service limitations.
Consistent with recent enforcement, notably in the abuse of dominance area including in connection with its challenges against the Toronto Real Estate Board and Ontario hot water heater suppliers, the Bureau raises several potential switching cost concerns relating to long-term contracts, handset locking and excessive termination fees. Some of the potential adverse effects that, in the Bureau’s view, may flow from these wireless contract and handset features include reducing the incentive for incumbent carriers to innovate, raising rivals’ costs and acting as a barrier for new wireless entry.
Not surprisingly, and consistent with many Canadians, the Bureau takes particular issue with the fact that the contemplated code does not include any limit on the duration of wireless agreements. With respect to handset locking, the Bureau takes the position that device locking should be prohibited and that service providers should be required to unlock any previously locked devices free of charge. The Bureau also advocates for the uncoupling of current device subsidy contracts (i.e., for the financing of mobile devices over the life of a plan) from wireless service contracts generally, allowing consumers to continue with device financing agreements after switching to alternate providers.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
