Archive for the 'Advertising' Category
Advertising Standards Canada (ASC) will be hosting two upcoming seminars on privacy in Toronto and Montreal entitled “The Truth About Privacy: Canada and Beyond”. According to the ASC, the seminars are based on a recent McCann study on how Canadian and worldwide consumers think about privacy.
From the ASC:
“In a transparent world where virtually all aspects of our lives have become digitized, the question of personal privacy keeps arising. What do consumers really think about privacy? To find out, McCann Truth Central asked over 6,000 people worldwide what privacy means to them. With ASC’s support, McCann has now extended its research to include 1,000 Canadians. In this ground-breaking study, McCann probed many areas, including: where do people draw the line between public and private information?; when do consumers feel their privacy has been violated?; what motivates consumers to share their data?; how do Canadian perceptions of privacy stack up against the rest of the world?; how can advertisers manage data as an opportunity and not a risk? Join us as Laura Simpson and David Tucker from McCann Truth Central, McCann’s global thought leadership unit, share the extraordinary insights gleaned from this important study. ASC will also provide an update on our industry’s new self-regulatory framework for online behavioural advertising and the launch of the Digital Advertising Association of Canada.”
I have been doing quite a bit of compliance work lately, and have been seeing a wide range of compliance by companies and associations, ranging from no compliance or guidelines whatsoever to full competition law compliance programs that follow the Competition Bureau’s recommended elements in its Corporate Compliance Programs Bulletin.
Given that the Competition Bureau continues to aggressively enforce the Competition Act in key areas (conspiracy, abuse of dominance, bid-rigging and misleading advertising), I thought that I would post a “top 10” competition compliance list (or as it happened to work out a top 15).
While by no means exhaustive, this list covers much of what companies and associations need to think about to reduce the likelihood that Competition Act issues will arise.
Key Competition & Advertising Compliance Rules
for Companies & Associations
DO NOT agree to fix prices, divide markets (geographic markets, customers or product/service lines) or restrict output with competitors.
DO NOT discuss competitively sensitive topics with competitors (e.g., prices, margins, costs, markets, market shares, marketing or strategic plans, etc.). Exceptions can include discussions in the context of mergers, joint ventures and some other legitimate pro-competitive competitor-competitor activities, but advice should be sought prior to doing so.
DO NOT make decisions with competitors to refuse to deal with or supply to competitors, customers, suppliers or other marketplace participants without obtaining legal advice. Some concerted refusals to deal (i.e., “boycotts”) can raise significant competition law issues, while others may be justified depending on the circumstances – for example, some membership decisions in the association context.
DO NOT agree with competing bidders or tenderers to fix the terms of a bid/tender, not bid/tender or withdraw a bid/tender that has already been made. Also avoid discussing the terms of bids/tenders, or whether your company intends to bid, with competing bidders/tenderers (e.g., at association events or in other forums). Some types of joint bids can be made (e.g., in the context of legitimate bid consortia that meet the requirements of the Competition Act), but legal advice should be sought prior to the preparation and submission of joint bids.
DO NOT incorrectly suggest, in internal documents or correspondence, that anti-competitive activities are occurring (e.g., language that suggests coordination with competitors in relation to pricing, customers or output – e.g., it would “be easier to cooperate than compete”; that decisions are being made for anti-competitive purposes – e.g., to “drive out” a competitor; or “loaded” language – e.g., “dominate”, “squash”, “eliminate”, “stabilize” competition, “us and them”, they’re “not following the rules”, etc.).
DO NOT attempt to interfere with competitors’ suppliers without consulting management or obtaining legal advice.
DO consult management or obtain legal advice before attempting to influence a customer’s or reseller’s prices (or refusing to supply or discriminating against a person where the refusal/discrimination may be related to the person’s low pricing policy).
In the second of two recent major announcements (the first being yesterday’s release of the CRTC’s inaugural guidelines under Canada’s impending anti-spam legislation – see: here), Canada’s telecom regulator today announced public consultations on a new mandatory wireless code. The thrust of the new consultations appears to be primarily two-fold: to impose guidelines for contracts (e.g., increased clarity of terms, required terms, changes to terms, cancellation, expiry, renewals, etc.) and reduce potential misleading advertising related issues.
While the CRTC has allowed market forces to govern the wireless industry since the early-1990s, this new announcement shows some willingness by the CRTC to regulate Canada’s concentrated wireless sector (albeit at this stage through a mandatory code of conduct). In making the announcement, the CRTC’s Chairman Jean-Pierre Blais said:
“Our goal is to make sure that Canadians have the tools they need to make informed choices in a competitive marketplace. … In the past, Canadians have told us that contracts are confusing, and that terms and conditions can vary greatly from one company to another. We are asking them to assist us in developing a code that will help them better understand their rights as consumers and the responsibilities of wireless companies.”
The CRTC’s Notice of Consultation describes the rationale for the new consultation and code:
“In Telecom Decision 2012-556, the Commission determined that it would be appropriate to develop a code for retail mobile wireless data and voice services (mobile wireless services) to ensure the clarity of mobile wireless service contracts and related issues for consumers. The Commission concluded that consumers need additional tools to better understand their basic rights, as well as their service providers’ responsibilities with respect to mobile wireless services, in order to participate in the competitive market in an informed and effective manner. With this Notice of Consultation, the Commission initiates a proceeding to establish a mandatory code to address the clarity and content of mobile wireless service contracts and related issues … The code developed as a result of this proceeding is intended to provide a clear and concise list of consumers’ rights and service providers’ responsibilities regarding mobile wireless services.”
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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October 10, 2012
On October 10, 2012, the Canadian Radio-television and Telecommunications Commission (the “CRTC”) issued new guidelines on Canada’s anti-spam legislation (the Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC) (“Interpretation Guidelines”) and Guidelines on the use of toggling as a means of obtaining express consent under Canada’s anti-spam legislation) (“Toggling Guidelines”). These are the first of a series of CRTC guidelines to be issued to facilitate compliance with Canada’s upcoming anti-spam legislation.
The National Competition Law Section of the Canadian Bar Association has published a new issue of its Competition Law Review (which is now also available in a searchable format online).
This new issue includes articles on The Competition Act of 1986, Competitor Agreements: Interpreting Criminal Conspiracy in a Blended Criminal-Civil Regime, Section 36 of the Competition Act, Abuse of Dominance in Canada: Reflections on 25 Years of Section 79 Enforcement, The Treatment of Vertical Price Restraints under the Competition Act, The Evolution of Vertical Distribution Practices under the Competition Act, 25 Years of Merger Review in Canada, The Evolution of Canada’s Pre-Merger Notification Regime (1986-2012), Foreign Investment Screening under Canada’s Investment Canada Act, Misleading Advertising and Deceptive Marketing Practices under the Federal Competition Act, A Quarter Century of the Competition Tribunal and Economics and Canadian Competition Policy.
From the CBA:
“Volume 25, Issue 2 is a special edition devoted to a retrospective on 25+ years of the Competition Act and the Investment Canada Act. Leading members of the bar, including four former Commissioners, have authored high quality papers taking an in-depth look at the substantive and procedural development of those statutes. We trust that you will find them informative, thought-provoking and enjoyable.”
For a copy see: Canadian Competition Law Review (Fall 2012)
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A few new Canadian competition, advertising and regulatory law books caught my eye recently including:
The Canadian Marketing Law Handbook, 2nd ed. (H. Lue & S. Punniyamoorthy) (Carswell). See: Carswell – Newly Published.
There are several forms of intellectual property law that are associated with marketing and advertising law. These include patents, trade-marks, copyright and industrial designs. Generally, trade-mark and copyright law have had the most impact when it comes to marketing and advertising issues. The introductory chapters discuss various types of intellectual property law. The remaining chapters provide an IP perspective on advertising and marketing issues including the personality rights, comparative advertising, grey marketing and counterfeit goods, pharmaceutical advertising, Quebec advertising, advertising standards, packaging, Internet advertising and ambush marketing. Canadian Marketing Law Handbook, Second Edition provides a practical handbook as well as an update on the possible remedies that can be used by the legal practitioner in cases involving advertising and marketing issues.
Defamation Law: A Primer (R.E. Brown) (Carswell). See: Carswell – Newly Published.
Defamation Law: A Primer provides basic and concise coverage of the substantive law of defamation. Raymond E. Brown, the author of The Law of Defamation in Canada, 2nd Edition, articulates both the diversity and similarity of the common law of defamation in Canada, Great Britain, Australia, New Zealand, South Africa and the United States. He has included the leading decisions in each of these countries, and quotes extensively from leading jurists. This book also includes a chapter outlining the impact of the United States constitution on the law of defamation, as well as a chapter devoted to recommending a variety of changes in the law.
I have been updating my Canadian advertising and marketing law blog a bit recently, and have added a short overview of the Competition Bureau’s views about consumer rebate programs in Canada. As such, I thought this would be a good opportunity to post a short note on consumer rebates in Canada.
In September, 2009, the Competition Bureau issued Enforcement Guidelines on Consumer Rebate Promotions (the “Rebate Guidelines”). The Rebate Guidelines, which originated, in part, from the Bureau’s concern with the use of deceptive mail-in rebates (see e.g.: here), set out the Bureau’s approach to interpreting the false or misleading representations provisions of the Competition Act, Consumer Packaging and Labelling Act and Textile Labelling Act in the area of consumer rebate promotions. The Guidelines define consumer rebates as:
“Consumer rebate promotions include any type of promotion that involves a partial refund or discount from a manufacturer or retailer to consumers upon the purchase of a product. Refunds are normally paid in the form of cash or a cheque. For the purposes of this publication, ‘rebate’ is defined as excluding gift cards and other forms of credit on future purchases, given that the term ‘rebate’ can create the general impression in the minds of consumers that a portion of the price of the product will be returned to them.”
The Rebate Guidelines set out five examples of when consumer rebate promotions may violate the criminal or civil misleading advertising provisions of the Competition Act (sections 52 or 74.01) as follows:
1. Inadequate disclosure of rebate conditions, limitations or exclusions.
2. Rebates disguised as the sale price or regular price.
3. Mail-in rebates disguised as instant rebates (i.e., available at the time of purchase).
In a curious pleading filed in the British Columbia Supreme Court, a Sunshine Coast British Columbia plaintiff has commenced a punitive damages class action against Google for allegedly violating Canadian privacy, misleading advertising, criminal, intellectual property and tort laws in relation to its Gmail webmail service. The thrust of the dispute appears to be centered around allegations that Google intercepted and used information from e-mails sent from non-Gmail users to Gmail accounts for advertising.
With respect to privacy, the plaintiff alleges that Google intercepted, copied, scanned, retained and used private communications sent from non-Gmail users to Gmail accounts to generate free information used for advertising services, committing the tort of invasion of privacy under the British Columbia Privacy Act and at common law.
As for competition law, the plaintiff also argues that Google violated the criminal misleading advertising provision (section 52) of the federal Competition Act (misleading advertising under the Competition Act can be enforced as either a criminal or civil matter under sections 52 or 74.01). The plaintiff’s misleading advertising claim is slightly unclear, but he appears to allege that Google failed to disclose its data collection activities (i.e., interception, copying, scanning and use of private communications), its false or misleading representations were made intentionally (i.e., knowingly or recklessly), they were made to advance its business interests and caused the plaintiff (and other class members) damages.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
