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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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 27, 2012
I’ve been thinking lately about writing a short note on Competition Act remedies and how the Act can be used as a strategic tool, partly from working on a few recent files with general commercial counsel who tend to ask: “what will we get and how do we get there using competition law”?
I’ve also grown to think of the Competition Act over the past few years as a collection of tools that can be used for strategic purposes (e.g., in settlement negotiations) or in an effort to achieve certain types of remedies for clients. In other words, thinking about remedies first and the best types of competition law tools to get there.
So, with that said, the following is a short overview of Competition Act penalties and remedies (and a few of the ways the Act can be used as a strategic tool, either on its own or with other proceedings or strategies):
1. As a general matter, the Competition Act contains both civil provisions and criminal offences, and so the potential penalties/remedies vary considerably depending on the particular provision and whether a criminal offence or civil reviewable matter.
2. Competition Bureau complaints are possible under all of the provisions of the Act, by consumers or competitors (and may be filed in a number of ways).
3. Under the criminal offences of the Act (e.g., criminal conspiracy agreements, bid-rigging, deceptive telemarketing, etc.), potential penalties include fines and/or imprisonment. The Bureau also sometimes seeks so-called “prohibition orders” for conduct to stop, which is one peculiar feature and remedy available to the Bureau.
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.
December 10, 2012
The U.S. Federal Trade Commission (FTC) has issued a very interesting new report on kids’ apps and privacy entitled: Mobile Apps for Kids: Disclosures Still Not Making the Grade (see: here and here) (and announced new “nonpublic” related investigations in the mobile app industry). The FTC’s new report examines the privacy disclosures and practices in connection with kids’ apps in the Google Play and Apple App stores and is the FTC’s second kids’ mobile apps survey.
In announcing the release of its new report, the FTC said:
“Since FTC staff’s first survey of kids’ mobile apps in 2011, staff found little progress toward giving parents the information they need to determine what data is being collected from their children, how it is being shared, or who will have access to it. The report also finds that many of the apps surveyed included interactive features, such as connecting to social media, and sent information from the mobile device to ad networks, analytics companies, or other third parties, without disclosing these practices to parents.
While we think most companies have the best intentions when it comes protecting kids’ privacy, we haven’t seen any progress when it comes to making sure parents have the information they need to make informed choices about apps for their kids. In fact, our study shows that kids’ apps siphon an alarming amount of information from mobile devices without disclosing this fact to parents. … All of the companies in the mobile app space, especially the gatekeepers of the app stores, need to do a better job. We’ll do another survey in the future and we will expect to see improvement.”
According to the FTC, most kids’ apps it reviewed failed to disclose any information about the data being collected and commonly shared information with 3rd parties (including device ID, geolocation or phone numbers) without adequate disclosure. Some of the other key findings from the FTC’s new kids’ app report include:
1. Parents are not being provided with information about what data an app collects, who will have access to that data, and how it will be used. Only 20 percent of the apps staff reviewed disclosed any information about the app’s privacy practices.
2. Many apps (nearly 60 percent of the apps surveyed) are transmitting information from a users’ device back to the app developer or, more commonly, to an advertising network, analytics company, or other third party.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
