Archive for the 'Advertising' Category
November 13, 2012
Earlier today, the CRTC announced that it has launched its online discussion for consultations for the new consumer wireless code of conduct. In making the announcement, the CRTC’s Chairman Jean-Pierre Blais said:
“’We encourage Canadians to join the online discussion and have their say on how wireless contracts could be clearer and easier to understand. … By sharing their views, Canadians can help us shape a clear list of terms and conditions that wireless companies will need to include in their contracts.’ The CRTC recently examined the wireless market and found that contracts were a source of significant concern for many Canadians. Once completed, the code will help Canadians better understand their rights and their wireless company’s responsibilities, and allow them to make informed decisions in a competitive marketplace.”
The CRTC’s new online discussion, which will be open until December 4th, will allow Canadians to give their views on what they think should be in the new mandatory wireless code, how wireless related complaints should be resolved and promotion and enforcement of the code.
The CRTC first announced that it was launching new public consultations for a mandatory wireless code of conduct on October 11th (see: here and here) to formulate guidelines for wireless contracts and reduce potential misleading advertising related issues.
In its initial announcement in early October, the CRTC set out the following general elements it is considering addressing in the new wireless code: clarity of contract terms and conditions; changes to contract terms and conditions; contract cancellation, expiration and renewal; clarity of advertised prices; application of the code to bundles of telecommunications services; notification of additional fees; privacy policies; hardware warranties and related issues; loss or theft of hardware; security deposits; and disconnections.
This online discussion will be followed by another in early 2013 (from January 28 to February 1, 2013).
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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);
In an interesting story reported by the Montreal Gazette, the Quebec Federation of Real Estate Boards (“QFREB”) has filed a misleading advertising complaint with the Competition Bureau against the sale-by-owner real estate firm DuProprio (see also REM’s article and real estate industry commentary: QFREB files complaint against DuProprio with the Competition Bureau). DuProprio operates as ComFree in other provices (Ontario, Saskatchewan and Alberta).
According to allegations being made by QFREB, DuProprio is misleading Quebec consumers with respect to price and savings claims being made in relation to its real estate sales services (allegedly misleading claims being made “both in terms of their rates and the hypothetical savings that … promised to consumers”).
According to media reports, while the QFREB has not disclosed any specific examples of DuProprio advertisements being challenged as misleading, client testimonials being used by the firm include cost savings between $12,000 and $22,000 and the founder of DuProprio has made public claims that his firm can help clients save an average of $15,000 on broker costs.
While the scope of the QFREB’s Competition Bureau complaint against DuProprio is not yet clear, and it is also not clear if the Bureau will take any enforcement steps against DuProprio, comparative commission claims have caused friction between real estate firms before (both between members and non-members of Canadian real estate boards).
I am pleased to be delivering two upcoming competition law compliance courses (Competition Law and REALTORS®) for the members of the Kamloops (November 26th) and Victoria (November 29th) real estate boards.
The compliance seminars will include overviews of Canadian competition law enforcement, the Competition Bureau, the conspiracy, misleading advertising, price maintenance and abuse of dominance provisions of the Competition Act and practical real estate related case studies.
Competition Law and REALTORS®: What You Say and Do Matters is a national competition law compliance course designed by the Alliance for Canadian Real Estate Education with the assistance of The Canadian Real Estate Association to help Canadian REALTORS® understand and comply with Canadian competition law. While Canadian competition law applies to all real estate professionals, this course was designed specifically for REALTORS®. This course provides an overview in plain language of Canadian competition law and practical compliance guidelines to assist REALTORS® in complying with Canadian competition law and a number of illustrative case studies.
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Conventional thinking has been that the most serious consumer protection enforcement tends to be under federal law (e.g., the Competition Act or Criminal Code). That reasoning changed somewhat last week with an Oakville company being found guilty by a Newmarket Ontario court of violating the Ontario Consumer Protection Act (the “CPA”), fined $250,000, ordered to pay more than $100,000 in restitution to customers with the firm’s director also sentenced to six months in jail. These are the most significant penalties ever imposed against a business under the CPA.
The Oakville heating and cooling company and its director had been charged with 21 violations of the CPA. In making the announcement, Ontario’s Ministry of Consumer Services said:
“It had been alleged that between March and November 2008, Mr. Preston and his company misled consumers in Markham, Stouffville, Toronto and Mississauga by providing contracts and accepting payments for services and products he knew his failing company would be unable to provide. Heating and cooling systems that were supplied malfunctioned shortly after installation and consumers were not given refunds when contracts were cancelled.”
The CPA governs many common types of consumer transactions in Ontario and regulates, among other things, consumer agreements (including future performance, time share, Internet, distance and direct sales agreements), certain types of misleading claims and some specific sectors (including auto repair, credit and leasing).
“In the 2002 film Minority Report, Steven Spielberg imagined a world in which companies use biometric technology to identify us and serve us targeted ads. Ten years later, that vision is coming closer to reality. Having overcome the high costs and poor accuracy that once stunted its growth, one form of biometric technology – facial recognition – is quickly moving out of the realm of science fiction and into the commercial marketplace.
Today, companies are deploying facial recognition technologies in a wide array of contexts, reflecting a spectrum of increasing technological sophistication. At the simplest level, the technology can be used for facial detection; that is, merely to detect and locate a face in a photo. Current uses of facial detection include refining search engine results to include only those results that contain a face; locating faces in images in order to blur them; ensuring that the frame for a video chat feed actually includes a face; or developing virtual eyeglass fitting systems and virtual makeover tools that allow consumers to upload their photos online and “try on” a pair of glasses or a new hairstyle.”
(U.S. Federal Trade Commission, Report,
Facing Facts: Best Practices for Common Uses of Facial Recognition Technologies)
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For those who have seen the Tom Cruise film Minority Report, you will surely remember the scene where Tom Cruise cruises through Gap and gets targeted ads directed at him. I can’t quite recall if this was an accelerated version of geo targeted advertising or facial recognition (or be sure that I could decode the technology in any event).
In any event, that was the first thing that came to mind when I saw that the U.S. Federal Trade Commission has just published a new staff report yesterday on advertising and privacy issues connected to facial recognition technologies – called: Facing Facts: Best Practices for Common Uses of Facial Recognition Technologies – and sure enough the lead-in to the report describes facial recognition technology, like that depicted in Minority Report, becoming a reality.
In issuing the new report, the FTC said:
“The Federal Trade Commission today released a staff report “Facing Facts: Best Practices for Common Uses of Facial Recognition Technologies” for the increasing number of companies using facial recognition technologies, to help them protect consumers’ privacy as they use the technologies to create innovative new commercial products and services.
Facial recognition technologies have been adopted in a variety of contexts, ranging from online social networks and mobile apps to digital signs, the FTC staff report states. They have a number of potential uses, such as determining an individual’s age range and gender in order to deliver targeted advertising; assessing viewers’ emotions to see if they are engaged in a video game or a movie; or matching faces and identifying anonymous individuals in images.
Facial recognition also has raised a variety of privacy concerns because – for example – it holds the prospect of identifying anonymous individuals in public, and because the data collected may be susceptible to security breaches and hacking.”
The FTC’s new report makes a number of recommendations for companies utilizing facial recognition technologies for advertising including designing services with consumer privacy in mind; developing reasonable security protections for information collected (and policies for determining what information to keep and discard); and evaluating the sensitivity of information when developing facial recognition related products (e.g., digital signs that use facial recognition technology is recommended not to be set up in places where children may be targeted).
The report also makes a number of other recommendations, including in relation to notice, disclosure (i.e., what data will be collected and how it will be used), choice to participate (or opt out) and affirmative consent in some cases.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
