CANADIAN COMPETITION LAWYER

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G

General impression.

A term used in the context of advertising and marketing law, and in particular in relation to misleading advertising under the Competition Act. In general, an advertising or marketing claim may contravene the “general” criminal (section 52) or civil (section 74.01) misleading advertising provisions of the Competition Act if it is literally false or misleading or if the “general impression” of the claim is false or misleading.

In this regard, subsection 52(4) of the Competition Act provides: “In a prosecution for a contravention of [the criminal misleading advertising section], the general impression conveyed by a representation as well as its literal meaning shall be taken into account in determining whether or not the representation is false or misleading in a material respect.” The general civil misleading advertising provisions contain a similar section (subsection 74.03(5)). As such, when reviewing advertising and marketing for compliance with the misleading advertising provisions of the Act, the entire context of a claim or representation must be considered, including the association and placement of words, the placement and choice of images, graphics and pictures, and as well consideration of whether the omission of material information (e.g., relating to price, quality, scope of services, important conditions, limitations, etc.) may mean that the “general impression” of the overall claim or representation could be seen as false or misleading.

The Competition Bureau’s 2001 Misleading Advertising Guidelines provided one of the most detailed and relevant discussions of the “general impression test”, despite having been since replaced by updated misleading advertising guidelines by the Bureau since: “Section 52(4) requires a court to take into account the general impression conveyed by a representation, in addition to its literal meaning. … The application of the general impression test is particularly important where: the representation is partially true and partially false, or the representation is capable of two meanings, one of which is false; the representation is literally true but is, in fact, misleading since it fails to reveal certain essential information … the representation is literally or technically true but creates a false impression, for example where the advertised results of a test of a product may not be significant to its use or efficacy but the representation makes it appear otherwise … ; the representation is literally true insofar as the oral or written statements are concerned but the visual part of the representation may create a false impression, for example where it depicts a model which is different from the advertised product …”

Richard v. Time Inc., 2012 SCC 8: “The general impression test provided for in [the Quebec Consumer Protection Act (the “CPA”)] must be applied from a perspective similar to that of ‘ordinary hurried purchasers’, that is, consumers who take no more than ordinary care to observe that which is staring them in the face upon their first contact with an advertisement. The courts must not conduct their analysis from the perspective of a careful and diligent consumer. … In applying the general impression test provided for in [the CPA] the Quebec courts have traditionally used the words ‘credulous’ and ‘inexperienced’ to describe the consumer in issue in the Act. … In sum, it is clear that … the ‘general impression’ referred to in [the CPA] is the impression of a commercial representation on a credulous and inexperienced consumer. … Thus, in Quebec consumer law, the expression ‘average consumer’ does not refer to a reasonably prudent and diligent person, let alone a well‑informed person. To meet the objectives of [the CPA] the courts view the average consumer as someone who is not particularly experienced at detecting the falsehoods or subtleties found in commercial representations.”

Professor Claude Masse, Loi sur la protection du consommateur: analyse et commentaires (1999), at p. 828: “Commercial advertising often plays on the general impression that may be conveyed by an advertisement and even on the literal meaning of the terms used. Information in advertisements is transmitted quickly. Advertising relies on the image and the impression of the moment. This general impression is often what is sought in advertising. By definition, consumers do not have time to think at length about the real meaning of the messages being conveyed to them or about whether words are being used in their literal sense. The content of advertising is taken seriously in consumer law. Consumers do not have to wonder whether or not the promises made to them or the undertakings given are realistic, serious or plausible. Merchants, manufacturers and advertisers are therefore bound by the content of messages actually conveyed to consumers.”

Competition Bureau, Ensuring Truth in Advertising, Additional Information About the Competition Act, The General Scope of the False or Misleading Representations and Deceptive Marketing Practices Provisions of the Competition Act: “Subsections 52(4), 52.1(4) and 74.03(5) [of the Competition Act] require a court to take into account the general impression conveyed by a representation, in addition to its literal meaning. This test applies to the following provisions: subsection 52(1) — false or misleading representations; subsection 52.1(3) — deceptive telemarketing; paragraph 74.01(1)(a) — false or misleading representations; paragraph 74.01(1)(b) — performance representations not based on adequate and proper tests; paragraph 74.01(1)(c) — misleading warranties and guarantees; subsections 74.01(2) and 74.01(3) — false or misleading ordinary selling price representations; and section 74.02 — untrue, misleading or unauthorized use of tests and testimonials. General impression is also an element of subsection 53(1), which prohibits deceptive notices of winning a prize. The application of the general impression test is particularly important where: the representation is partially true and partially false, or the representation is capable of two meanings, one of which is false; the representation is literally true but is, in fact, misleading since it fails to reveal certain essential information [i.e., the non-disclosure of material information]; the representation is literally or technically true but creates a false impression, for example where the advertised results of a test of a product may not be significant to its use or efficacy but the representation makes it appear otherwise …; the representation is literally true insofar as the oral or written statements are concerned but the visual part of the representation may create a false impression, for example where it depicts a model which is different from the advertised product …”

Competition Bureau, Enforcement Guidelines, “Product of Canada” and “Made in Canada” Claims: “When determining whether a ‘Product of Canada’ or ‘Made in Canada’ declaration has been made that is false or misleading, the [Competition Act] requires that the general impression conveyed by a representation as well as its literal meaning, be taken into account. Thus, when examining a particular representation, the Bureau will consider the general impression conveyed through a combination of words, visual elements, illustrations and overall layout that may alter the plain meaning of a representation.”

R. v. Imperial Tobacco Products Ltd., [1971] 5 W.W.R. 409, 3 C.P.R. (2d) 178 (Alta. S.C.), quoting Federal Trade Commission v. Sterling Drug Inc., 317 F.2d 669 (2^nd Cir. 1963) at 674: “It is therefore necessary in these cases to consider the advertisement in its entirety and not to engage in disputatious dissection. The entire mosaic should be viewed rather than each tile separately. The buying public does not ordinarily carefully study or weigh each word in an advertisement. The ultimate impression upon the mind of the reader arises from the sum total of not only what is said but also of all that is reasonably implied.”

Geofencing.

Wall Street Journal: “The idea behind geofencing is to target consumers when they are nearby—and the promotions can get hyper-local, like beaming a special on umbrellas to people within a 10-mile radius during a rainstorm, or touting a markdown on aisle 6 when a customer is walking down aisle 3.”

Geo Targeting.

An advertising industry term.

Interactive Advertising Bureau (IAB): “Basic geo-targeting allows targeting Internet users (targeting online or mobile devices) by means of cross referencing their IP address with a global ISP IP address directory. This permits ad servers that are connected to this database to target devices based on their IP address’ geographic location: state/province, city/municipality, telephone area code and postal/zip code. Really this allows reaching someone whose device is connected through Internet access based on that Internet access’s point of origin. It is not always as precise as we’d like it to be, nor is it always what we expect it to be though it’s quite logical why it isn’t.”

Gift card.

Financial Consumer Agency of Canada: “There are two main types of prepaid cards. Both require you to pay up front to ‘load’ money on to a card for later use and both are sometimes referred to as ‘gift cards’. Prepaid cards from retailers can only be used at a single store or group of stores, such as a chain or shopping mall. Other prepaid cards, usually branded with a payment card network operator’s logo, such as American Express, MasterCard or Visa, can be used at most merchants that display the specific network’s logo.”

Datacard Group: “A gift card is a type of stored-value payment card commonly issued by retailers and banks. Gift cards are preloaded with a set value. There are two major types of cards – those that can be used only at one store chain or one location (closed loop) and those that can be used anywhere (open loop). Closed loop gift cards generally carry no fees or expiration date – the issuing store makes its money off the profit from selling merchandise. Open loop gift cards always carry fees. Because they are issued by banks or credit card transaction processors, such as Visa or MasterCard, fees are the only way they can profitably issue gift cards.”

Ontario Consumer Protection Act Regulations: “’Gift card’ means a voucher in any form, including an electronic credit or written certificate, that is issued by a supplier under a gift card agreement and that the holder is entitled to apply towards purchasing goods or services covered by the voucher.”

Government advertising.

Advertising Standards Canada, The Canadian Code of Advertising Standards: “‘advertising’ by any part of local, provincial or federal governments, or concerning policies, practices or programs of such governments, as distinct from ‘political advertising’ and ‘election advertising.’”

Greenwashing.

Devika Kewalramani & Richard J. Sobelsohn (Moses & Singer LLP): “’Greenwashing’ is a novel word that merges the concepts of ‘green’ (environmentally sound), and ‘whitewashing’ (to gloss over wrongdoing), to describe the deceptive use of green marketing that promotes a misleading perception that a company’s policies, practices, products or services are environmentally friendly. ‘Greenwashing’ officially became part of the English language in 1999 with its entry into the Oxford English Dictionary. It defines the term as ‘disinformation disseminated by an organization so as to present an environmentally responsible public image.’ The term is generally used when an organization expends more time and resources marketing their ‘greenness’ than actually adopting procedures that are environmentally beneficial. It includes the practice of misleading customers regarding the environmental advantages of a specific product or service through deceptive advertising and unsubstantiated claims.”

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We are a Toronto based competition and advertising law firm offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. We also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.

Our experience includes advising clients in Toronto, across Canada and the United States on the application of Canadian competition and regulatory laws and we have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.

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For more information about our firm, visit our website: Competitionlawyer.ca

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F

419 scam (aka Nigerian scam, West African scam or advance fee fraud).

Competition Bureau, The Little Black Book of Scams (2012): “The Nigerian scam (also called the 419 fraud) has been on the rise since the early-to-mid 1990s in Canada. Although many of these sorts of scams originated in Nigeria, similar scams have been started all over the world (particularly in other parts of West Africa and in Asia). These scams are increasingly referred to as ‘advance fee fraud’. In the classic Nigerian scam, you receive an email or letter from a scammer asking your help to transfer a large amount of money overseas. You are then offered a share of the money if you agree to give them your bank account details to help with the transfer. They will then ask you to pay all kinds of taxes and fees before you can receive your ‘reward’. You will never be sent any of the money, and will lose the fees you paid.”

RCMP, Internet Security: “Fraud letters from Nigeria (and other African countries) is a type of scam that has been around for a number of years. Businesses, educational institutions and government departments were originally the prime targets of electronic messages bearing the promise of substantial amounts of money from alleged government or company officials in Nigeria. The general public is now also targeted, and thousands of people like you receive similar e-mail messages in their personal mail boxes. In some cases, con artists even send stolen or forged cheques to their victims. This scam can also be done by phone and from many countries. In addition to money you can be asked for confidential information against the promise of profits.”

Joewein.de LLC: “The so-called ‘419’ scam (aka ‘Nigeria scam’ or ‘West African’ scam) is a type of fraud named after an article of the Nigerian penal code under which it is prosecuted. It is also known as ‘Advance Fee Fraud’ because the common principle of all the scam format is to get the victim to send cash (or other items of value) upfront by promising them a large amount of money that they would receive later if they cooperate. In almost all cases, the criminals receive money using Western Union and MoneyGram, instant wire transfer services with which the recipient can’t be traced once the money has been picked up. These services should never be used with people you only know by email or telephone! Typically, victims of the scam are promised a lottery win or a large sum of money sitting in a bank account or in a deposit box at a security company. Often the storyline involves a family member of a former member of government of an African country, a ministerial official, an orphan or widow of a rich businessman, etc. Variants of the plot involving the Philippines, Taiwan, China, Hong Kong, Korea, Iraq, Kuwait, UAE, Mauritius, etc. are also known. Some emails include pictures of boxes stuffed with dollar bills, scans of fake passports, bank or government documents and pictures of supposedly the sender.”

Facial recognition technology.

A technology used for targeted marketing.

U.S. Federal Trade Commission, Report, Facing Facts: Best Practices for Common Uses of Facial Recognition Technologies (October, 2012): “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. A more refined version of facial recognition technology allows companies to assess characteristics of facial images. For instance, companies can identify moods or emotions from facial expressions to determine a player’s engagement with a video game or a viewer’s excitement during a movie. Companies can also place cameras into digital signs to determine the demographic characteristics of a face – such as age range and gender – and deliver targeted advertisements in real-time in retail spaces. In the most advanced application, companies can use the technology to compare individuals’ facial characteristics across different images in order to identify them. In this application, an image of an individual is matched with another image of the same individual. If the face in either of the two images is identified – that is, the name of the individual is known – then, in addition to being able to demonstrate a match between two faces, the technology can be used to identify previously anonymous faces. This is the use of facial recognition that potentially raises the most serious privacy concerns because it can identify anonymous individuals in images. One prevalent current use of this application is to enable semi-automated photo tagging or photo organization on social networks and in photo management applications. On social networks this feature typically works by scanning new photos a user uploads against existing “tagged” photos. The social network then identifies the user’s “friends” in the new photos so the user can tag them.”

Fake news website.

Competition Bureau, news release, “Advertising on the Internet – Use of ‘Fake News Websites’”: “A recent trend in misleading Internet advertising has been to make product advertisements appear to be legitimate and reputable news websites. These sophisticated advertisements, disguised as investigative news stories seem to contain all the attributes of a legitimate news website. However, many scammers create fake news websites to promote bogus products with unfounded and misleading claims. Such advertisements may be used to promote a variety of products and services, from health products to job opportunity scams. A typical fake news website uses deceptive testimonials and fabricated reader comments, false endorsements by celebrities, and illegitimately inserts web logos from trusted mainstream media, or popular television programs. Almost every aspect of the website is fake, with multiple hyperlinks inserted, encouraging consumers to buy, or sign up for a ‘free’ trial of a product. Affiliate marketers are using these fake news websites to manipulate consumers’ trust in legitimate news organizations.”

Fidelity discount.

OECD, Policy Roundtable, Fidelity and Bundled Rebates and Discounts (2008): “For the purposes of this roundtable, single-product loyalty discount refers to the practice of offering discounts or rebates on all units purchased of a single-product conditioned upon the level (or share) of purchases — the discounts or rebates apply to all units of the buyer’s purchases of the product rather than just the units beyond the level (or share) of purchases needed to obtain them. These discounts are also referred to as loyalty discounts or rebates. In this paper, we use the terms ‘fidelity’ and ‘loyalty’ interchangeably and the terms ‘rebate’ and ‘discount’ interchangeably.”

OFT Draft Guidelines on Assessment of Conduct (2004): “Aris[ing] where a supplier (e.g., a manufacturer) effectively offers a customer (e.g., a wholesaler or a retailer) a discount that is conditional not on the size of the customer’s order, but on the share of the customer’s needs purchased from the supplier.”

OECD, Policy Roundtable, Loyalty and Fidelity Discounts and Rebates (2002): “… fidelity discounts are defined to be pricing structures offering lower prices in return for a buyer’s agreed or de factocommitment to source a large share of his requirements with the discounter. Fidelity discounts could have both pro- and anticompetitive effects … It is sometimes difficult to distinguish a fidelity discount from a straightforward quantity discount. For example, a 50 percent discount conditional on some minimum purchase quantity over a certain period of time, offered on exactly the same terms to all buyers, may or may not be a fidelity discount. The determining factor would be whether the minimum purchase quantity corresponds to a significant number of buyers’ probable total or near total requirements in the period referred to. … Most fidelity discounts make use of what we will refer to as a ‘reference period’ in calculating the percentage discount awarded. The reference period will typically be considerably longer than the time normally elapsing between buyers’ purchases. For example, a taxi operator working an average of 24 days per month and purchasing 40 litres of gasoline a day, might receive a ten percent fidelity discount if it purchases more than 900 litres a month from a particular petroleum distributor. The reference period would be one month and the taxi company’s requirements would be stated as 960 litres per month. More formally, a buyer’s requirements are his estimated total purchases of some properly defined product (i.e. including appropriate substitutes) over the reference period used to determine eligibility for a particular fidelity discount. Fidelity discounts can take a wider range of forms than simply a lower price or a percentage reduction. Sometimes they are offered in the form of ‘complimentary’ goods. In return for a purchase of 20 or more litres of petrol, a service station might, for example, give away a statuette belonging to a set of twenty well-known football players. The desire to obtain a complete set could make this function like a fidelity discount, especially if the offer will be terminated in say six months. The same applies to many toys offered by breakfast cereal producers.”

Hoffman-La Roche v. Commission [1979] ECR 461: “… discounts conditional on the customer’s obtaining all or most of its requirements – whether the quantity of its purchases be large or small – from the undertaking in a dominant position.”

Field marketing.

Canadian Marketing Association, Code of Ethics and Standards of Practice: “Field marketing is face-to-face promotion or sale of products or services to consumers. It includes merchandising, sampling, demonstrations and events.”

First Party Targeted Ads.

One form of Internet advertising. Office of the Privacy Commissioner of Canada, Policy Position on Online Behavioural Advertising: “The first party with which an individual has a relationship creates a profile about an individual, and serves them advertisements based on this profile. The user is not tracked over different unrelated websites.”

Foreign Lottery Schemes.

Canadian Department of Justice, Report of the Canada – United States Working Group on Telemarketing Fraud (Updated December 1, 2011): “Telemarketers offer victims the opportunity to “invest” in tickets in well-known foreign lotteries (e.g., Canada or Australia), or give them a ‘one in six’ chance of winning a substantial prize. This is a common cross-border offence, since it plays upon the ignorance of victims of the rules (or even the existence) of foreign lotteries. If offenders purport to sell real lottery chances but deceive victims about their chances of winning, it may be both a gambling offence and fraud; if real chances are sold without deception, it may still be a gambling offence.”

For more information about Canadian contest/sweepstakes law, see: Contests, Contests and CASL, Contest FAQs, Contest Tips and Contests and Social Media.

For information about the Canadian contest/sweepstakes precedents (template rules) and checklists that we offer for sale, see: Canadian Contest Forms/Precedents.

Fraudulent misrepresentation / tort of deceit

XY, Inc. v. International Newtech Development Incorporated, 2012 BCSC 319 (CanLII): “The tort of deceit, also known as civil fraud, is concerned with the intentional inducement of another person to rely upon a representation that the representor knows to be untrue. The elements that make up this tort are: (1) a false representation of fact by the defendant; (2) made with the knowledge of its falsity or recklessly, i.e., not caring whether it is true or not; (3) made with the intention that the plaintiff would act on it; (4) with the intention that the plaintiff would act on it; and (5) the plaintiff suffered damages.”

Derry v. Peek (1889) 14 App. Cas. 337 (H.L.) [Combining the fourth and fifth elements]: “(1) A false representation or statement made by the defendant; (2) the statement was knowingly false; (3) the statement was made with the intention to deceive the plaintiff; and (4) the statement materially induced the plaintiff to act, resulting in damage.”

Spencer Bower, Turner and Handley, Actionable Misrepresentation (4^th ed., 2000): “An action for damages for fraudulent misrepresentation at common law was an action for deceit. The Court of Chancery exercised a concurrent jurisdiction with the Courts of Law in cases of actual fraud, and could award equitable compensation on similar, but not identical, principles, and also specific relief. In either case a representee must allege and prove: (1) a representation; (2) that the defendant was the representor; (3) that the plaintiff was a representee; (4) inducement; (5) falsity; (6) alteration of position; (7) fraud; (8) damage. The first six matters are common to all claims for misrepresentation … The seventh and eighth, fraud and damage, are peculiar to actions in deceit. From the earliest times it has been recognized that the concurrence of fraud and damage is essential to a claim for damages for fraudulent misrepresentation.”

Free.

Competition Bureau, Pamphlet, False or Misleading Representations and Deceptive Marketing Practices: “Don’t increase the price of a product or service to cover the cost of a free product or service.” Competition Bureau, Ensuring Truth in Advertising, False or Misleading Representations: “… where article A is advertised as being free with the purchase of article B, but article B is available at a discount or lesser price if the ‘free’ article is foregone, then article A is not if fact free. … Nor is it ‘free’ in a ‘two-for-one’ situation where the price of the first article is inflated to cover the cost of the second.”

U.S. Federal Trade Commission, FTC Guide Concerning Use of the Word “Free” and Similar Representations: “Meaning of “Free” … The public understands that, except in the case of introductory offers in connection with the sale of a product or service … an offer of ‘Free’’ merchandise or service is based upon a regular price for the merchandise or service which must be purchased by consumers in order to avail themselves of that which is represented to be ‘Free’. In other words, when the purchaser is told that an article is ‘Free’ to him if another article is purchased, the word ‘Free’ indicates that he is paying nothing for that article and no more than the regular price for the other. Thus, a purchaser has a right to believe that the merchant will not directly and immediately recover, in whole or in part, the cost of the free merchandise or service by marking up the price of the article which must be purchased, by the substitution of inferior merchandise or service, or otherwise.”

Future performance agreement.

Ontario Consumer Protection Act: “future performance agreement” means a consumer agreement in respect of which delivery, performance or payment in full is not made when the parties enter the agreement.”

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SERVICES AND CONTACT

To contact us about a potential legal matter, see: contact

For more information about our firm, visit our website: Competitionlawyer.ca

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E

Election advertising.

Advertising Standards Canada, The Canadian Code of Advertising Standards: “Includes ‘advertising’ about any matter before the electorate for a referendum, ‘government advertising’ and ‘political advertising,’ any of which advertising is communicated to the public within a time-frame that starts the day after a vote is called and ends the day after the vote is held. In this definition, a ‘vote’ is deemed to have been called when the applicable writ is issued.”

Electronic message (CASL).

For more information about CASL, see: CASL (Anti-Spam Law), CASL Compliance, CASL Compliance Tips, CASL Compliance Errors, CASL FAQs, Contests and CASL.

For more information about the CASL compliance checklists and precedents that we offer for sale, see: CASL Compliance Checklists and Precedents.

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SERVICES AND CONTACT

To contact us about a potential legal matter, see: contact

For more information about our firm, visit our website: Competitionlawyer.ca

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D

Deceptive prize notice.

Competition Bureau, Enforcement Guidelines, Application of the Competition Act to Representations on the Internet: “Subsection 53(1) of the [Competition Act] makes it an offence to send deceptive notices of prizes. A notice is deceptive where, among other things, there has not been adequate and fair disclosure of certain information, including facts which materially affect the chances of winning. The offence applies to sending the prize notification or causing it to be sent, whether ‘by electronic or regular mail or by any other means’. Further information on the Bureau’s policy with respect to section 53, can be found in the publication entitled Deceptive Notices of Winning a Prize – Section 53 of the Competition Act available on the Competition Bureau Web site.”

For more information about Canadian contest/sweepstakes law, see: Contests, Contests and CASL, Contest FAQs, Contest Tips and Contests and Social Media.

For information about the Canadian contest/sweepstakes precedents (template rules) and checklists that we offer for sale, see: Canadian Contest Forms/Precedents.

Defamation.

Shakespeare, Othello, Act 3, Scene 3: ”Good name in man and woman, dear my lord is the immediate jewel of their souls. Who steals my purse steals trash; ‘tis something, nothing; ‘Twas mine, ‘tis his, and has been slave to thousands. But he that fliches from me my good name robs me of that which not enriches him, and makes me poor indeed.”

Gatley on Libel and Slander: “The gist of the torts of libel and slander is the publication of matter (usually words) conveying a defamatory imputation. A defamatory imputation is one to a man’s discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking persons generally. To be defamatory an imputation need have no actual effect on a person’s reputation; the law looks only to its tendency. A true imputation may still be defamatory, although its truth may be a defence to an action brought on it; conversely untruth alone does not render an imputation defamatory.”

Wilson v. Switlo, 2011 BCSC 1287, per Mr. Justice R. Punnett: “The law of defamation concerns the civil wrongs of libel and slander. At common law, libel is defamatory expression in writing or some other permanent form while slander is an oral statement or some other form of transitory expression. Generally, expression that tends to lower a person’s reputation in the estimation of ordinary, reasonable members of society generally, or to expose a person to hatred, contempt or ridicule is defamatory… An allegation of defamation may rest on the literal meaning of a statement or on its inferential meaning, or on the claim that the statement constitutes a legal innuendo. In this case only the literal and inferential meanings of the impugned statements are in issue. Where the literal meaning is in issue, it is unnecessary to go beyond the words themselves. A claim based on the inferential meaning relies on what the ordinary person will infer from the statement. That is, it is a matter of impression.”

[Elements]: “A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.”

P. Downard, Libel (Markham: LexisNexis, 2010): “[t]he classic statement of the law is that words are defamatory if they tend to cause the plaintiff to be regarded by reasonable persons with hatred, contempt, fear or ridicule. Words are also defamatory if they impute improper and disreputable conduct, even though an ordinary person might not regard that conduct with hatred, contempt, fear or ridicule.” [Citing Botiuk v. Toronto Free Press Publications Ltd. [1995] 3 S.C.R. 3]

Canadian Bar Association, “Defamation: Libel and Slander” (online): “Defamation is communication about a person that tends to hurt the person’s reputation. Defamation is a strict liability tort, which means that the intentions of the defamer are not relevant. The communication must be made to other people, not just to the person it’s about. The statement must be false to be classified as defamation. If it is spoken, then defamation is termed ‘slander’. If it is written, it is termed ‘libel’. It can also be a gesture, which is a type of slander. The law protects your reputation against defamation. If someone defames you, you can sue them to pay money (called ‘damages’) for harming your reputation. You have to sue in Supreme Court, not Provincial Court, and you have to sue within 2 years of the defamation. It is not relevant the timing of when you discovered the defamation. Rather, the limitation period commences on the date the defamatory statement was made or published. … The law doesn’t protect you from a personal insult or a remark that injures only your pride; it protects reputation, not feelings. So if someone calls you a lazy slob, you might be hurt, but you probably don’t have a good reason to sue. If he goes on to say you cheat in your business dealings, you probably do have a good reason to sue, as long as he says it to someone else, not just to you. If he says it only to you, you can’t sue because he has not hurt your reputation.”

Denial-of-service (DoS) Attack.

CRTC: “An attacker attempts to make a computer system, typically owned by a government or corporate target, unavailable to its users. This can be done by flooding an organization’s e-mail account or bombarding its website. When, for example, a bank is targeted, customers may be prevented from accessing their online bank or credit-card accounts.”

Device IDs

A term relevant to behavioural advertising.

U.S. Federal Trade Commission, FTC Staff Report, Mobile Apps for Kids: Disclosures Still Not Making the Grade (December, 2012): “Device IDs are short strings of letters and/or numbers that uniquely identify specific mobile devices. Today’s smartphones typically have multiple device IDs, each used for a different purpose. Some device IDs are used to enable services like Wi-Fi and Bluetooth, or to uniquely identify specific devices operating on the carriers’ networks. Other device IDs, like Apple’s ‘UDID’ or Android’s ‘Android ID,’ are used by apps, developers, and other companies to identify, track, and analyze devices and their users across various mobile services. Companies can receive a wide variety of information about users through mobile apps, including data about the device (like a user’s device model, carrier, operating system version, and language settings) and personal data (like a user’s name, phone number, email address, friends list, and geolocation). If this information is collected with a unique device ID, it can be associated with previously collected data with the same unique device ID. The extent to which the collection of device IDs raises privacy concerns depends in part on how it is used. Because device IDs are difficult or impossible to change, they can be used by apps, developers, and other companies to compile rich sets of data or ‘profiles’ about individuals. However, the use of device IDs when necessary for specific internal operations, such as protecting against fraud and theft, site maintenance, maintaining user preferences, or authenticating users, would not raise the same concerns. Concerns about the creation of detailed profiles based on device IDs become especially important where, as staff found, a small number of companies (like ad networks and analytics providers) collect device IDs and other user information through a vast network of mobile apps. This practice can allow information gleaned about a user through one app to be linked to information gleaned about the same user through other apps.”

Dictionary attack.

Government of Canada, Canada’s Anti-Spam Legislation (www.fightspam.gc.ca), FAQs: “… a computer program guesses live email addresses by methodically trying multiple name variations within a particular group of common email domains, such as Hotmail or Gmail.”

Director and officer liability (CASL).

In general, Canada’s federal anti-spam legislation (CASL) requires that senders have express or implied consent (as defined by the legislation) to send unsolicited commercial electronic messages (CEMs) to Canadians, unless an exemption under CASL applies. Under CASL, directors and officers of companies can also be liable for violations of CASL in addition to the senders of CEMs. In this regard, CASL contains a director and officer liability section, which provides that “an officer, director, agent or mandatory of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against”. Section 54 of CASL, however, also provides a due diligence defence.

For more information about CASL, see: CASL (Anti-Spam Law), CASL Compliance, CASL Compliance Tips, CASL Compliance Errors, CASL FAQs, Contests and CASL.

For more information about the CASL compliance checklists and precedents that we offer for sale, see: CASL Compliance Checklists and Precedents.

Direct-to-consumer marketing.

OECD, Competition Assessment Toolkit (2011): “Increasingly, countries are imposing bans or introducing significant regulations on direct-to-consumer marketing of products via email, fax and telephone. In general, both large and small companies and self-employed individuals rely on this channel to advertise their products and services. One factor that has been driving this type of advertising is the relatively lower cost – in comparison to say advertising on television and specialty magazines. This type of direct advertising may also be preferred by many companies as they are better able to reach their target audience. One of the significant downsides of this type of marketing relates to intrusion of privacy.”

Direct sales contracts.

Consumer Protection BC: “When you enter into a contract in person, but at a place other than the supplier’s permanent place of business, you are entering into a direct sales contract.”

Some Canadian provincial consumer protection legislation regulates direct sales contracts, including governing contractual requirements and giving consumers “cooling off” (i.e., cancellation of contract rights).

Disclaimer.

Purolator Courier Ltd. v. United Parcel Service Canada Ltd., 1995 CarswellOnt 335 (Ont. Gen. Div.): “A disclaimer does not automatically nullify a misleading impression created by an ad. Its effect will depend on several factors, including the degree to which a representation misleads the public without the disclaimer, the prominence which it is given in the context of the entire advertisement, the degree of sophistication that the public to whom the advertisement is directed exhibits, and the likelihood that the audience would recognize the disclaimer. It is a question of fact whether, in the circumstances, a disclaimer is sufficient to ensure that the representation is not otherwise misleading”.

Competition Bureau, “Use of Disclaimers”, Misleading Advertising Bulletin No. 2 (1986): “A disclaimer may properly clarify any possible ambiguity or provide any reasonable qualification provided the general impression conveyed by the ad is not misleading. However, the main body of the advertisement, apart from the disclaimer, should be capable of standing alone. In most cases, it seems unlikely that a single disclaimer statement is capable of having a significant effect on the general impression conveyed to an average purchaser by a false or misleading advertisement.”

Competition Bureau, Corporate Compliance Programs Bulletin (2010): “Ensure that fine-print disclaimers are avoided. If used, ensure that the overall general impression created by an advertisement and a disclaimer are not false or misleading. … Ensure that information that may alter the principal representation when promoting a product or service is not placed in the disclaimer.”

Competition Bureau, “Recognize It!”, Fraud Prevention Resource (December, 2011): “Fraudsters are professional criminals that know what they are doing. Fraudsters rely on some basic techniques to be successful. These include … hiding the true details in the fine print.”

Competition Bureau, Enforcement Guidelines, Application of the Competition Act to Representations on the Internet (October 16, 2011): “If qualifying information is necessary to prevent a representation from being false or misleading when read on its own, businesses should present that information clearly and conspicuously. Businesses frequently use disclaimers, often signaled by an asterisk, to qualify the general impression of the principal representation when referring to their products or services. … The Bureau takes the position that disclaimers which expand upon and add information to the principal representation do not raise issues under the Act. A disclaimer can only qualify a representation; it cannot cure or retract a false or misleading representation.”

Do Not Call List.

Canadian Radio-television and Telecommunications Commission (“CRTC”): “The National Do Not Call List (DNCL) gives consumers a choice about whether to receive telemarketing calls. The National DNCL Rules introduce new responsibilities for Canada’s telemarketers. If you are a consumer you can choose to reduce the number of telemarketing calls you receive by registering your residential, wireless, fax or VoIP telephone number on the National DNCL. You can also check your registration, find out how to remove your number from the National DNCL, and file a complaint about telemarketing calls. The DNCL introduces new responsibilities for Canada’s telemarketers.”

Double ticketing.

Competition Bureau, Ensuring Truth in Advertising: “Section 54 of the Competition Act is a criminal provision. It prohibits the supply of a product at a price that exceeds the lowest of two or more prices clearly expressed in respect of the product. Any person who contravenes section 54, is guilty of an offence and liable to a fine of up to $10,000 and/or imprisonment up to one year on summary conviction.”

Drip pricing.

On June 23, 2022, Bill C-19 (the Budget Implementation Act, 2022, No.1) received royal assent, introducing sweeping amendments to Canada’s federal Competition Act. These amendments include significant increases to the civil and criminal penalties under the Competition Act, new wage fixing and no poach conspiracy offences and expanding the civil abuse of dominance provisions to include more types of anti-competitive acts and increasing the potential penalties for abuse of dominance. They also include new civil and criminal prohibitions on drip pricing (i.e., failing to disclose the full price of a product or service until later in the purchase process or product checkout) to the criminal and civil provisions on false and misleading advertising under sections 52 and 74.01. Drip pricing has been one of the Competition Bureau’s (Bureau) deceptive marketing enforcement priorities over the past several years, together with other top enforcement priorities including false or misleading performance claims, ordinary sale price (OSP) claims and misleading endorsements and testimonials. In its recommendations for Competition Act reform, the Bureau had cited evidential challenges associated with the enforcement of drip pricing practices given the lack of specific prohibitions under the Competition Act. In this regard, before the amendments in June 2022, drip pricing was only reviewable under the general criminal and civil misleading advertising provisions of the Competition Act (sections 52 and 74.01) if a pricing claim was either literally false or misleading (e.g., a portion of the total price was omitted in a headline marketing claim or the claim suggested that the stated price was the complete price with no other charges or fees). The Bureau had commenced drip pricing enforcement in a number of industry sectors, including online event tickets and online car rentals. For some examples of the Bureau’s past drip pricing related enforcement, see: here, here and here. For more information about the 2022 amendments to the Competition Act, see: Sweeping Canadian Competition Act Amendments Passed.

Due diligence defence.

The Competition Act contains pure criminal offences (i.e., requiring subjective intent, such as the criminal misleading advertising provision, section 52) and strict liability offences (i.e., where proof of carrying out the mere actus reus, or act elements, is sufficient to constitute an offence subject to a due diligence defense). In this regard, due dligence defenses are available under the deceptive telemarketing (section 52.1), deceptive prize notice (section 53(1)) and multi-level marketing (section 55(1)) provisions of the Competition Act.

See also Competition Bureau, Bulletin, Corporate Compliance Programs (2010): “For certain false or misleading representations and deceptive marketing practices provisions under the Competition Act and certain provisions of the Consumer Packaging and Labelling Act, the Textile Labelling Act and the Precious Metals Marking Act, a company may argue that it had exercised due diligence to prevent the conduct. Although the pre-existence of a program is not, in and of itself, a defence to allegations of wrongdoing under any of the Acts, a credible and effective program may enable a business to demonstrate that it took reasonable steps to avoid contravening the law. In this regard, such a program may support a claim of due diligence. Documented evidence of corporate compliance will assist a company in advancing a defence of due diligence, where available.” … “The existence of a program does not immunize businesses or individuals from enforcement action by the Commissioner or from prosecution by the DPP.20 However, in determining the most appropriate means to resolve cases involving offences where the exercise of due diligence is a defence, the Commissioner may give weight to the pre-existence of a credible and effective program in making sentencing recommendations to the DPP. A program will be considered credible and effective where it can be demonstrated that it was reasonably designed, implemented and enforced in the circumstances.”

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Caller identification spoofing.

CRTC, “International enforcement agencies join forces to thwart caller identification spoofing” (October 21, 2013): “As agencies responsible for enforcing do-not-call, privacy, telemarketing, consumer protection, telecommunications and other related laws, we are faced with the common challenge of caller identification spoofing. This practice, which can accentuate the harm caused by silent or nuisance calls, occurs when callers conceal their true identity by using invalid phone numbers to make calls. This causes harm to consumers by facilitating unwanted, misleading and fraudulent telemarketing activities which causes anxiety, annoyance and in some cases distress and financial losses. Telemarketers who make sales calls to consumers in our countries have an obligation to identify themselves. Callers who use technology to spoof their caller ID with inaccurate, false or misleading information to appear on a telephone’s call display violate this requirement. A spoofed number can appear as a string of digits, such as 000-000-0000, a random number or the stolen number of a real company, person or government entity. Law enforcement experience and reports from consumers establish that caller identification spoofing is a troubling trend, particularly as it is challenging for enforcement agencies to track down the responsible parties.”

“Car or cash pitch”

A form of deceptive telemarketing.

Rachel Larable-Lesieur, Deputy Director of Investigation and Research, Marketing Practices Branch, Bureau of Competition Policy, “Modern Communications and Global Markets”, speech to the Canadian Institute Conference on Misleading Advertising (1995): “… victims are led to believe that they have won either a vehicle or money but to get their prize, they must release money up front to cover phony taxes, insurance or handling charges.”

CASL (Canadian federal anti-spam legislation)

On July 1, 2014, Canada’s federal anti-spam law (CASL) came into force. CASL is one of the strictest anti-spam laws in the world. In general, CASL requires express or implied consent to send Canadians commercial electronic messages (CEMs) as defined in the legislation. CASL also imposes sender identification and opt-out (i.e., unsubscribe) requirements for CEMs. CASL is relevant for individuals, companies and other organizations that engage in electronic marketing, including e-mail, text messaging, instant messaging and some types of social media marketing (e.g., where messages are sent to electronic addresses, such as via some social media platforms’ messaging services). CASL also often applies when running contests or other types of promotions in Canada, including in the following situations: (i) if electronic distribution/marketing lists will be used to market the contest/promotion, (ii) the contest/promotion will include the collection of e-mails for marketing unrelated to the administration of the contest/promotion, (iii) if participants’ e-mail addresses will be shared with third parties (e.g., related entities, affiliate marketers, lists will be sold, etc.) or (iv) participants are encouraged or required to “share” information about the contest/promotion with others (e.g., “friends and family” type promotions). The potential penalties for violating CASL include civil administrative montetary penalties (essentially civil fines) of up to CDN $1 million (for individuals) and CDN $10 million (for corporations).

For more information about CASL, see: CASL, CASL Compliance , CASL Compliance Tips, CASL FAQs, CASL Compliance Errors and Contests and CASL.

For CASL compliance checklists and precedents that we offer for sale, see: Anti-Spam Law (CASL) Precedents.

Cause marketing.

Wikipedia: “Cause marketing or cause-related marketing refers to a type of marketing involving the cooperative efforts of a for profit business and a non-profit organization for mutual benefit. The term is sometimes used more broadly and generally to refer to any type of marketing effort for social and other charitable causes, including in-house marketing efforts by non-profit organizations. Cause marketing differs from corporate giving (philanthropy), as the latter generally involves a specific donation that is tax deductible, while cause marketing is a marketing relationship not necessarily based on a donation.”

Caveat emptor.

Latin for “let the buyer beware”.

Caveat venditor.

Latin for “let the seller beware”.

R. v. Colgate-Palmolive Ltd., [1970] 1 C.C.C. 100: “This legislation is the expression of a social purpose, namely the establishment of more ethical trade practices calculated to afford greater protection to the consuming public. It represents the will of the people of Canada that the old maxim caveat emptor, let the purchaser beware, yield somewhat to the more enlightened view caveat venditor — let the seller beware.”

Charitable donation scam.

A type of fraud.

Ontario Ministry of Consumer Services: “Phony fundraisers can contact you through mail, e-mail, telephone, or by knocking on your door. They claim to represent a charitable organization that helps people in need or is involved in a social issue, such as protecting the environment. They ask you for money. If you hesitate, they may try to pressure you. They may say the problem is desperate. They may say you need to act immediately. But beware. If you give them money, it often goes right into their own pockets. Once you make your donation, there is usually nothing you can do to get your money back. And real charities are cheated out of the money you would have given them.”

“Cheap gift pitch”

A form of deceptive telemarketing.

Rachel Larable-Lesieur, Deputy Director of Investigation and Research, Marketing Practices Branch, Bureau of Competition Policy, “Modern Communications and Global Markets”, speech to the Canadian Institute Conference on Misleading Advertising (1995): “… victims are told they are winners of one of several prizes but in order to qualify for the prize, they need to purchase a cheap product at an inflated price.”

For more information about Canadian contest/sweepstakes law, see: Contests, Contests and CASL, Contest FAQs, Contest Tips and Contests and Social Media.

For information about the Canadian contest/sweepstakes precedents (template rules) and checklists that we offer for sale, see: Canadian Contest Forms/Precedents.

Closed loop gift card.

Commercial electronic message.

Canada’s new anti-spam legislation (Bill C-28) introduces an “opt-in” regime for electronic marketing using “commercial electronic messages” (“CEMs”). “CEMs are defined in Bill C-28 as follows: “For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that (a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land; (b) offers to provide a business, investment or gaming opportunity; (c) advertises or promotes anything referred to in paragraph (a) or (b); or (d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.” “Commercial activity” is defined very broadly as follows: “any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.”

For more information about CASL, see: CASL, CASL Compliance , CASL Compliance Tips, CASL FAQs, CASL Compliance Errors and Contests and CASL.

For CASL compliance checklists and precedents that we offer for sale, see: Anti-Spam Law (CASL) Precedents.

Comparative Advertising.

A common type of advertising/marketing that can be the subject of challenge by provincial or federal enforcement agencies (e.g., provincial consumer protection officials or the federal Competition Bureau) is comparative advertising. Generally speaking, comparative advertising is where individuals or companies compare prices, product or service quality or performance to their competitors.

See e.g.: Advertising Standards Canada, Canadian Code of Advertising Standards: “Comparative advertising is advertising (as defined in the Code) that compares the advertiser’s products or services, and the products or services of one or more identifiable organization(s) or of the marketplace as a whole, concerning, for example, product or service characteristics, value, performance, consumer preference, market share, sales origin or availability.”

Like performance claims, comparative advertising can be an effective and legitimate way to distinguish products or services from the competition. For example, the Competition Bureau has endorsed the potentially pro-competitive benefits of comparative advertising, including in its 2007 Report on the self-regulated professions in Canada (Self-regulated professions – Balancing competition and regulation) with respect to legal fees: “[c]omparative advertising fosters price competition by allowing prospective clients to compare fees. When consumers cannot compare the prices for legal services, there is little or no incentive for lawyers to compete on price, thereby raising the costs to consumers.”

However, comparative advertising can also raise misleading advertising concerns in some cases – for example, where the information in a comparative advertising claim is false or misleading or where it includes a performance claim that is not substantiated (i.e., that is not based on adequate and proper testing, which is required under the Competition Act). As such, it is important to ensure that comparative advertising claims are, among other things, true, accurate and that any important information (e.g., conditions, limitations, etc.) is clearly disclosed. In addition, if comparative advertising involves performance claims, such as claims relating to the performance or reliability of a product/service, it is also important that any such claim be both accurate and substantiated before being made.

OECD, Guidance, Competition Assessment Toolkit (2011): “Comparative advertising has the objective of extolling the virtues of the product sold by the advertiser compared to its competitor(s). Comparisons can be very specific, highlighting, for example, technical differences. Or they could be general and more subjective in nature. Comparative advertising can also provide price comparisons between the advertiser’s product and its competitors. A car manufacturer can, for example, advertise and make statements about how their cars are safer relative to their competitors and cite scientific crash test studies. A carbonated drink producer could advertise that their drink tastes better than a competitor’s based on surveys of consumers.”

Competition Tribunal.

Competition Tribunal website: “The Competition Tribunal is a specialized tribunal that combines expertise in economics and business with expertise in law. The Tribunal is a strictly adjudicative body that operates independently of any government department. The cases it hears are complex and deal with matters such as mergers, misleading advertising and restrictive trade practices. The Competition Tribunal should be distinguished from the Competition Bureau. The Competition Bureau investigates complaints and decides whether to proceed with the filing of an application to the Tribunal.”

See also: Competition Tribunal Act and Competition Tribunal Rules.

Consumer rebate promotion.

Competition Bureau, Enforcement Guidelines, Consumer Rebate Promotions (2009): “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. Rebates can be beneficial to both consumers and businesses. For consumers, rebates can result in lower effective prices. For businesses, rebates provide a flexible tool that may increase the volume of sales. However, when rebates are not promoted or administered correctly, consumers may ultimately pay more than intended, and competitors can be unfairly disadvantaged. There are two types of rebates: Instant rebates – Consumers receive the rebate at the time of purchase. The rebate is generally available to anyone who purchases the product, without further condition; Mail-in rebates – Consumers apply for the rebate after the purchase, by mail-in application, online or by other means. ‘mail-in rebate’ includes mail-in, Internet and other delayed- payment rebates. Various market participants may be involved in promoting and administering rebates.”

Competition Bureau, News Release, “Are You Getting the Real Deal? Understand Rebate Promotions Before You Buy” (December 14, 2009): “True rebates involve a partial refund or discount on the purchase of a product, which is normally paid in the form of cash or a cheque. By contrast, some promotions offer gift cards or credits to be used on future purchases. While these may be a good deal, they are not rebates.”

Consumers Council of Canada: “True rebates involve a partial refund or discount on the purchase of a product, which is normally paid in the form of cash or a cheque. By contrast, some promotions offer gift cards or credits to be used on future purchases. While these may be a good deal, they are not rebates.”

Computer virus fixing scheme.

Consumer Protection BC, “Top Ten Scams 2013 – Just in case a scam is around the corner”: “This scam starts when you receive a call with a warning that your computer has been infected with a virus and an offer to clean your computer. What is really happening in this computer virus fixing scheme? The scammer is trying to gain remote access to your computer and get your credit card information. The scammer will say they need remote access to provide the supposed services, and will ask for your computer passwords and related information. They will also ask for your credit card information, so they can be billed for the supposed services.”

Contest.

Promotional contests in Canada are largely governed by the federal Competition Act (statutory disclosure and misleading advertising rules), federal Criminal Code (provisions governing “illegal lotteries” that must be avoided), federal and provincial privacy legislation (relating to the collection of entrant personal information), the common law of contract (contests have been held to be contracts) and intellectual property laws (e.g., relating to the transfer of original artistic materials, for example in skill contests, or reproduction of 3^rd party logos, trade-marks or other intellectual property not owned by a contest organizer). In addition, Quebec has a separate regime governing contests, regulated by the Régie des alcools, des courses et des jeux.

With respect to the Competition Act, subsection 74.06 makes it a reviewable (i.e., civil) matter, subject to civil penalties, to operate a contest without certain required disclosure, to unduly delay the award of prizes and also governs the selection of participants and distribution of prizes:

“A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product, or for the purpose of promoting, directly or indirectly, any business interest, conducts any contest, lottery, game of chance or skill, or mixed chance and skill, or otherwise disposes of any product or other benefit by any mode of chance, skill or mixed chance and skill whatever, where: (a) adequate and fair disclosure is not made of the number and approximate value of the prizes, of the area or areas to which they relate and of any fact within the knowledge of the person that affects materially the chances of winning; (b) distribution of the prizes is unduly delayed; or (c) selection of participants or distribution of prizes is not made on the basis of skill or on a random basis in any area to which prizes have been allocated.”

For more information about Canadian contest/sweepstakes law, see: Contests, Contests and CASL, Contest FAQs, Contest Tips and Contests and Social Media.

For information about the Canadian contest/sweepstakes precedents (template rules) and checklists that we offer for sale, see: Canadian Contest Forms/Precedents.

Contextual Advertisements.

One form of Internet advertising. Office of the Privacy Commissioner of Canada, Policy Position on Online Behavioural Advertising: “Contextual advertising uses information about a user’s current visit to a site in order to serve a targeted advertisement to the user on that site. For example, if a user is visiting a website about pets, then ads related to pets might be shown.”

Cookie.

Office of the Privacy Commissioner of Canada: “A cookie is a small piece of text that is placed on a computer when an individual visits a website. Cookies were created so that information could be saved between visits to a website. They collect and store information about individuals based on their browsing patterns and information they provide to a site. Cookies record language preferences, for example, or let users avoid logging in each time they visit a site. Almost all of the most popular websites use them. Cookies can be very useful because, without them, individuals would have to enter certain bits of their personal information each time they visit their favourite sites.”

Consent agreement.

Consent agreements are the form of settlement document entered into under the civil provisions of the Competition Act (the deceptive marketing and reviewable practices provisions), and have replaced the former process of obtaining consent orders from the Competition Tribunal. Under Part VII.1 (Deceptive Marketing Practices) the Commissioner of Competition and a person in relation to whom the Commissioner has applied (or may apply) for an order may enter into a consent agreement to settle the matter. Consent agreements are registered with the Competition Tribunal, upon which any proceedings are terminated and the consent agreement has the same force and effect as a court order (i.e., an order of the Competition Tribunal, Federal Court or provincial superior court, all of which are “courts” for the purposes of Part VII.1 of the Act). Consent agreements may also be entered into under the Part VIII Reviewable Matters provisions, including in relation to sections 75 (refusal to deal), 76 (price maintenance), 77 (tied selling / exclusive dealing / market restriction) and 79 (abuse of dominance). See section 105. As under Part VII.1 of the Act, consent agreements entered into under Part VIII, once registered with the Tribunal, terminate the proceedings, if any, and have the same force as a Competition Tribunal order.

See also Competition Bureau, Bulletin, Corporate Compliance Programs: “Depending on the circumstances, conduct contravening the Acts may be resolved without fully contested proceedings. The Act contains provisions that provide the Tribunal with the power to issue consent agreements under section 105 to address civil reviewable matters under Part VIII of the Competition Act. The Tribunal also has the authority to issue consent orders, which may include the publication of corrective notices under section 74.12. Section 34 provides that a court may, on application of the Attorney General of Canada, issue a consent prohibition order with or without an admission of guilt.”

Conspicuous publication category of implied consent (CASL).

In general, Canada’s federal anti-spam legislation (CASL) requires that senders have express or implied consent (as defined by the legislation) to send unsolicited commercial electronic messages (CEMs) to Canadians, unless an exemption under CASL applies. CASL contains a so-called “conspicuous publication” category of implied consent, which is one of a number of types of implied consent permitted under the legislation. This category of implied consent requires that all three of the following requirements be met: (i) the recipient has conspicuously published their e-mail address (or caused it to be published); (ii) there is no statement that the recipient does not want to receive CEMs; and (iii) the CEM is relevant to the recipient’s business, role, functions or duties in a business or official capacity. It is very important for electronic marketers to carefully review the requirements for express consent and each type of implied consent defined by the legislation.

For more information about CASL, see: CASL (Anti-Spam Law), CASL Compliance, CASL Compliance Tips, CASL Compliance Errors, CASL FAQs, Contests and CASL.

For more information about the CASL compliance checklists and precedents that we offer for sale, see: CASL Compliance Checklists and Precedents.

Consumer marketing.

Canadian Marketing Association, Code of Ethics and Standards of Practice: “Marketing products or services to individuals when they are purchasing for personal or household use.”

Copyright.

Intellectual Property Institute of Canada (IPIC): “Copyright is defined by the Copyright Act as the sole right to produce or reproduce a work or any substantial part thereof in any material form, to perform the work or any substantial part thereof in public, or, if the work is unpublished, to publish the work or any substantial part thereof. Any original literary (including software), dramatic, musical, or artistic work qualifies for copyright protection. With the possible exception of a work that is a compilation of data, originality requires that the work originate with the author, rather than it have any particular merit or novelty. If the author is a Canadian citizen or a citizen of a country with whom Canada has a treaty governing reciprocal copyright interests, or if the work is first published in Canada or such country, then copyright arises automatically, without the need for registration or other formality. Among the works protected by copyright are books, articles, sheet music, illustrations, photographs, motion pictures, works of sculpture and computer programs. Copyright protects the form of expression rather than the idea or content expressed. Copyright protection includes the right to translate or record a work as well as the right to transmit the work by telecommunication. The Copyright Act also creates ‘moral rights’, which include the right of an author to be associated with the work and to prevent the distortion or modification of the work.”

Cramming.

U.S. Federal Trade Commission: “Cramming is the placement of unauthorized charges on phone bills.”

U.S. Federal Trade Commission, Consumer Information, Mystery Charges on Your Phone Bill: “You’re looking at your phone bill thinking someone must have made a mistake. How can you be charged for web hosting when you don’t know what web hosting is? Why does your bill list a couple of international calls when all your friends and business contacts are stateside? Chances are you’ve been crammed. Cramming happens when a company adds a charge to your phone bill for a service you didn’t order, agree to, or use. Cramming charges can be small, say $2 or $3, and easy to overlook. But even when the phony charges aren’t small, they may sound like fees you do owe. That makes them tough to pick out, especially if your phone bill varies month to month.”

Cross-coupon promotion.

D.M.W. Young & B.R. Fraser, Canadian Advertising & Marketing Law: “One very popular avoidance scheme [to the trading stamp offence under the Criminal Code] relies upon circumventing the requirement that the device must be ‘given’ (gratis) by the vendor of goods to the purchaser thereof to be a trading stamp within the meaning of section 379. This requirement is arguably circumvented by having the purchaser ‘pay’ a nominal sum for the device. This approach has been used by various companies in so-called ‘cross-coupon’ promotions in which, by purchasing goods from one company in excess of some specified value, the purchaser becomes entitled to coupons representing a discount or premium in respect of certain goods sold (or manufactured) by another company, upon payment to the first company of some minimal sum (e.g., one cent). When the other (often related) company engages in a reciprocal promotional scheme, the result is a ‘cross-coupon’ promotion.”

CryptoLocker.

A type of online fraud.

Canadian Anti-Fraud Centre: “… the Canadian Anti-Fraud Centre (CAFC) has received … complaints regarding a new variation of Ransomware using CryptoLocker malware. Ransomware is malware that restricts access to infected computers and requires victims to pay a ransom in order to regain full access. The malicious software is being spread through email attachments. Once opened, CryptoLocker installs itself to the home or business computer and encrypt a variety of file types such as images, documents and spreadsheets. The malware searches for files to encrypt on all drives and in all folders. Once the malicious software is installed on the computer, a pop up appears claiming the files are blocked and that the data will be lost unless the private key is obtained from the scammers. In order to obtain the private key, a ransom payment in the amount of $300.00 is demanded to be paid by Bitcoin, UKash, Green Dot or other digital payment systems. The user is given approximately 72 hours before the private key is destroyed and the files are lost forever. Once the malware has encrypted files on a victim’s computer there is no way to decrypt them without the private key and by paying the ransom there is no guarantee that the files will be decrypted.”

Curber.

Consumer Protection BC, “Top Ten Scams 2013 – Just in case a scam is around the corner”: “Curbers, or unlicensed used-car ‘traffickers,’ often acquire junk cars and then sell them from parking lots or curbsides. They advertise through local newspapers and online ads. Later, the used car you bought privately may turn out to have a lien against it, the VIN (vehicle identification number) number switched, or the odometer rolled back. In some cases, the car turns out to be stolen.”

Cyber crime.

Foreign Affairs and International Trade Canada, International Crime and Terrorism: “Cyber crime consists of specific crimes dealing with computers and networks (such as hacking) and the facilitation of traditional crime through the use of computers (child pornography, hate crimes, telemarketing /Internet fraud). In addition to cyber crime, there is also ‘computer-supported crime’ which covers the use of computers by criminals for communication and document or data storage. While these activities might not be illegal in and of themselves, they are often invaluable in the investigation of actual crimes. Computer technology presents many new challenges to social policy regarding issues such as privacy, as it relates to data mining and criminal investigations.”

Cyberlibel.

USLegal.com: “Cyberlibel is essentially same as defamation, except that the alleged defamatory material is posted on the Internet. Defamation may also be referred to as libel, slander, disparagement, defamation of character, etc. Defamation in the Internet can be classified as libel in view of that material communicated on the Internet is published e.g. bulletin boards, emails, chat rooms etc.”

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Bait advertising.

U.S. Federal Government, Electronic Code of Federal Regulations, Title 16: Commercial Practices, Part 238 – Guides Against Bait Advertising: “Bait advertising is an alluring but insincere offer to sell a product or service which the advertiser in truth does not intend or want to sell. Its purpose is to switch consumers from buying the advertised merchandise, in order to sell something else, usually at a higher price or on a basis more advantageous to the advertiser. The primary aim of a bait advertisement is to obtain leads as to persons interested in buying merchandise of the type so advertised.”

Bait and switch.

The Competition Act contains “general” misleading advertising provisions, which generally prohibit false or misleading claims to the public to promote a product or any business interest (sections 52 and 74.01). In addition to these general misleading advertising provisions, the Act also contains a number of other sections that prohibit or regulate specific forms of marketing and advertising practices, including “bait and switch selling” (section 74.04).

Competition Bureau, Ensuring Truth in Advertising – Bait and Switch Selling: “The Competition Act prohibits ‘bait and switch’ selling which occurs when a product is advertised at a bargain price, but is not available for sale in reasonable quantities. The provision does not apply if the advertiser can establish that the non-availability of the product was due to circumstances beyond its control, the quantity of the product obtained was reasonable, or the customer was offered a rain check when supplies were exhausted.”

Competition Bureau, Pamphlet, Bait and Switch Selling: “Under the Competition Act, retailers are prohibited from advertising products at bargain prices that they do not have available in reasonable quantities. Liability will be avoided where the advertiser can establish that the non-availability of the product was due to circumstances beyond its control, the quantity of the product was obtained when reasonable, or the customer was offered a rain check when supplies were exhausted. Retailers who contravene the law may be ordered by a court to stop the conduct, to publish a corrective notice, and/or to pay an administrative monetary penalty.”

See also, Better Business Bureau (BBB) Code of Advertising: “[A] ’Bait’ offer is an alluring but insincere offer to sell a product or service which the advertiser does not intend to sell. Its purpose is to switch consumers from buying the advertised merchandise or service, in order to sell something else, usually at a higher price or on a basis more advantageous to the advertiser.”

See also Competition Act, section 74.04.

Behavioural advertising.

Office of the Privacy Commissioner, Guidelines, Privacy and Online Behavioural Advertising: “Online behavioural advertising involves tracking consumers’ online activities, across sites and over time in order to deliver advertisements targeted to their inferred interests. Behavioural advertisers often use sophisticated algorithms to analyze the collected data, build detailed personal profiles of users, and assign them to various interest categories. Interest categories are used to present ads defined as relevant to users in those categories. While advertising may help subsidize the delivery of free online content desired by most users, it is nevertheless essential that online advertising practices respect an individual’s privacy rights and consent choices. Online behavioural advertising may be considered a reasonable purpose under the Personal Information Protection and Electronic Documents Act (PIPEDA), provided it is carried out under certain parameters, and is not made a condition of service for accessing and using the Internet, generally.”

Blind network.

A mobile advertising network term.

Canadian Marketing Association (CMA), “The Truth about Mobile Ad Networks”: “These networks usually have a large database of smaller-sized publisher applications. Blind networks do not offer much insight or metrics in regards to the publishers that you are working with, but can be beneficial for stimulating awareness to your campaign within a broad audience segment. Publishers are usually given an assortment of self-serve tracking mechanisms to track and monitor the success of the mobile ad campaigns.”

Botnets.

Industry Canada, The Digital Economy in Canada: “The term ‘botnet’ refers to a collection of software robots, or ‘bots’, that operate undetected on a network of infected computers (commonly referred to as ‘zombies’). Computers can become infected in a number of ways, including: viruses sent as an attachment to a spam message; clicking on pop-up windows; or visiting an infected website. In the absence of security features such as firewalls or anti-virus programs, a computer can easily become compromised and users typically have no knowledge that their computer is operating as a zombie. Once established, botnets are controlled remotely by the originator and used for distributing all types of malware.”

CRTC: “Widely considered one of the biggest online threats today, a “botnet” is a network of computers infected by malicious software robots, or “bots”. The originator of the botnet, who is usually a spammer or criminal, controls the botnet remotely and automatically. Your computer can become compromised without your knowledge when, for example, you open an infected attachment in a spam e-mail, click on certain pop-up windows, or visit a booby-trapped website. Because of their ability to grow rapidly and without attracting attention, botnets threaten the stability of the Internet and online services.”

Government of Canada, Get Cyper Safe: “A collection of software robots, or ‘bots’, that creates an army of infected computers (known as ‘zombies’) that are remotely controlled by the originator.”

Brand spoofing.

Consumer Protection BC: “Brand spoofing (aka phishing) happens when scammers create false website or send consumers e-mails or text messages from what appear to be well-known and trusted businesses. When a consumer provides information to these fake sources, scammers gain access to private information such as SIN numbers or bank PIN numbers.”

RCMP, E-mail Fraud / Phishing: “Phishing is a general term for e-mails, text messages and websites fabricated and sent by criminals and designed to look like they come from well-known and trusted businesses, financial institutions and government agencies in an attempt to collect personal, financial and sensitive information. It’s also known as brand spoofing.”

“Business card” category of implied consent (CASL).

In general, Canada’s federal anti-spam legislation (CASL) requires that senders have express or implied consent (as defined by the legislation) to send unsolicited commercial electronic messages (CEMs) to Canadians, unless an exemption under CASL applies. CASL contains a so-called “business card” category of implied consent, which requires that a recipient has disclosed their electronic address to a sender without indicating that they do not want to receive unsolicited CEMs and the message is relevant to their business. It is very important for electronic marketers to carefully review the requirements for express consent and each type of implied consent defined by the legislation.

For more information about CASL, see: CASL (Anti-Spam Law), CASL Compliance, CASL Compliance Tips, CASL Compliance Errors, CASL FAQs, Contests and CASL.

For more information about the CASL compliance checklists and precedents that we offer for sale, see: CASL Compliance Checklists and Precedents.

Business directory scam.

U.S. Federal Trade Commission, Bureau of Consumer Protection: “The smooth-talking voice on the other end of the line claims to need some information to ‘confirm’ your existing phone book listing. Fast forward a few weeks and your mailbox is jammed with “invoices” threatening legal action if you don’t pay up. Chances are you’ve been hit by a business directory scam. The Federal Trade Commission (FTC) and the Better Business Bureau (BBB) have seen an increase in this form of fraud. Small and medium-sized businesses, churches, and not-for-profit groups have been hardest hit. Many will pay the bogus invoices in the mistaken belief that it’s simply a misunderstanding. But it’s not. It’s a growing form of fraud run by international scam artists. How the scam works: The Call. First, con artists make cold calls to offices. They ask the person answering the phone to ‘confirm’ the address, telephone number, and other information, claiming it’s for a listing the company has in the yellow pages or a similar business directory. The scammers then fire off a rapid series of questions they may tape-record, sometimes sliding in a confusing reference to the cost. The scam works because fraudsters convince the person who picks up the phone that they’re just ‘verifying’ an arrangement the company already has with the directory. The Bill. The con artist then sends urgent ‘invoices’ for $500 or more — sometimes including a copy of the ‘directory.’ They’re usually worthless and are never distributed or promoted as promised. Often, they’re just websites with listings of various businesses. In many cases, the person paying the bills will simply cut a check, not realizing that the company never agreed to pay the hefty fee for the directory. But if businesses resist, the scammers turn up the heat, threatening collection or legal action to get payment. They may use the name of the person who answered the phone or play a ‘verification tape’ as ‘proof’ that the company owes them money. Often these tapes have been doctored or the nature of the transaction was rattled off in a way no one could have understood. If companies stand firm in their refusal to pay for services they didn’t authorize, the scammer may try to smooth things over by offering a phony discount. Or they may let the company return the directory — at the company’s own cost, of course — but insist on payment for the so-called listing. At this stage, many companies pay up just to stop the hounding. What they don’t know is that they’ll likely get more bogus invoices — either from the same scam artist or from others who have bought their contact information for a new scheme.”

Business interest.

A false or misleading claim can violate the general civil or criminal misleading advertising provisions of the Competition Act (sections 52 and 74.01) where it is made to promote a product (i.e., in the context of traditional advertising or marketing of products or services) or also “any business interest”. “Business interest” has been broadly interpreted by Canadian courts in misleading advertising cases.

See for example, Commissioner of Competition v. Yellow Pages Marketing, 2012 ONSC 927 (Ont. Sup. Ct.): “… the Competition Act refers to promoting ‘any business interest’ and not just sales. The phrase ‘business interest’ must be given a wide meaning and collecting money, and threats made in relation to collection efforts, constitute promotion of the respondents’ business interests.”

Business-to-business (B2B) marketing.

Canadian Marketing Association, Code of Ethics and Standards of Practice: “Marketing products or services to other companies, government bodies, institutions and other organizations.”

Buying group.

Competition Bureau, Enforcement Guidelines, Competitor Collaboration Guidelines (2009): “A joint purchasing arrangement is an agreement between firms to purchase all or some of their requirements for a product from one or more suppliers. Such arrangements are often pro-competitive, as they permit firms to combine their purchases to achieve greater discounts from suppliers, and share delivery and distribution costs. However, joint purchasing agreements are agreements between parties that may be competitors in respect of the purchase of the products subject to the agreement. Accordingly, joint-purchasing arrangements can substantially lessen or prevent competition where, for example, purchasers agree to fix the price at which products will be purchased as an exercise of monopsony power. Joint purchasing arrangements can take several forms, including agreements to purchase products through a jointly controlled company, contractual arrangements between a group of firms and a supplier and buying groups.”

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Administrative monetary penalty (AMP).

The civil misleading advertising (section 74.01) and abuse of dominance (section 79) provisions of the Competition Act include “administrative monetary penalties” or “AMPs” as penalties (essentially civil fines). Under subsection 74.1(1) of the Competition Act (the penalties section for civil misleading advertising) a court may impose AMPs of up to $750,000 for individuals (up to $1 million for subsequent orders) and up to $10 million for corporations (up to $15 million for subsequent orders).

Under subsection 79(3.1) of the Competition Act, the federal Competition Tribunal may order a person to pay an AMP of up to $10 million ($15 million for subsequent orders). The size of AMPs that may be imposed under the misleading advertising provisions was significantly increased as a result of the amendments to the Act that were introduced in 2009. AMPs were introduced as a potential penalty for abuse of dominance for the first time in Canada as a result of those same amendments.

Competition Bureau, Frequently Asked Questions – Amendments to the Competition Act: “Administrative monetary penalties, or ‘AMPs,” are civil remedies, and quite distinct from fines (which are criminal). The purpose of an AMP is to promote and encourage compliance with the Competition Act, and failure to pay one may be enforced civilly as a debt due to the Crown. A fine, by contrast, is a punishment imposed by a court upon conviction of a criminal offence, and failure to pay may lead to imprisonment.”

Address harvesting.

Government of Canada, Canada’s Anti-Spam Legislation (www.fightspam.gc.ca), FAQs: “This refers to the collection of email addresses through the use of things such as ‘web crawlers,’ which are computer programs that scan websites, usenet groups and social networking sites, trolling for posted electronic addresses; and ‘dictionary attacks,’ in which a computer program guesses live email addresses by methodically trying multiple name variations within a particular group of common email domains, such as Hotmail or Gmail. Once collected, email addresses are often sold to spammers as destinations for unsolicited electronic messages.”

CRTC: “A technique used by spammers to automatically compile lists of e-mail addresses for their bulk electronic mail-outs. The process uses a computer program to troll the Internet for addresses found, for example, on people’s websites.”

Adequate and proper testing.

In addition to the general misleading advertising provisions of the Competition Act (sections 52 and 74.01), and a number of other provisions of the Act that regulate specific types of advertising and marketing conduct, the Act also contains a specific performance claims provision (paragraph 74.01(1)(b)), which requires any person that makes a “representation to the public in the form of a statement, warranty or guarantee of the performance, efficacy or length of life of a product” to have performed “adequate and proper tests” before the claim is made.

Canada (Competition Bureau) v. Chatr Wireless Inc., 2013 ONSC 5315 (Ont. Sup. Ct.): “The phrase ‘adequate and proper test’ is not defined in the Competition Act. Whether a particular test is ‘adequate and proper’ will depend on the nature of the representation made and the meaning or impression conveyed by that representation. Subjectivity in the testing should be eliminated as much as possible. The test must establish the effect claimed. The testing need not be as exacting as would be required to publish the test in a scholarly journal. The test should demonstrate that the result claimed is not a chance result: see [Canada (Commissioner of Competition) v. Imperial Brush Co., 2008 Comp. Trib. 2, [2008] C.C.T.D. No. 2 (Comp. Trib.)] at paras. 122, 124, 126 and 127. The respondents must show that adequate and proper testing supported the fewer dropped calls claim …”

Canada (Commissioner of Competition) v. Imperial Brush Co. (2008), 2008 Comp. Trib. 2 (Comp. Trib.): “In summary, and in respect of this case, I conclude that a ‘proper and adequate’ test depends on the claim made as understood by the common person; must be reflective of the risk or harm which the product is designed to prevent or assist in preventing; must be done under controlled circumstances or in conditions which exclude external variables or take account in a measurable way for such variables; are conducted on more than one independent sample wherever possible; results need not be measured against a test of certainty but must be reasonable given the nature of the harm at issue and establish that it is the produce itself which cases the desired effect in a material manner; and must be performed regardless of the size of the seller’s organization or the anticipated volume of sales.”

Administrative Monetary Penalties (Competition Act, CASL).

Some federal legislation in Canada includes “administrative monetary penalties” as potential penalties for contravening the legislation instead of criminal or quasi-criminal fines, including Canada’s federal Competition Act and CASL (federal anti-spam legislation).

For example, the potential penalties for violating the civil misleading representations provisions of the Competition Act include Competition Tribunal or court orders to cease the conduct, publish a corrective notice, pay restitution and/or pay an administrative monetary penalties (essentially civil fines): (i) for individuals up the greater of $750,000 ($1 million for each subsequent order) and three times the value of the benefit derived from the deceptive conduct if that amount can be reasonably determined; and (ii) for corporations up the greater of $10 million ($15 million for each subsequent order), three times the value of the benefit obtained from the deceptive conduct or, if the latter amount cannot be reasonably determined, 3% of the company’s annual worldwide gross revenues. For more information, see: Misleading Advertising.

Violation of CASL (Canada’s federal anti-spam legislation) may result in an administrative monetary penalty of up to $1 million (for individuals) or $10 million (for corporations).

For more information about CASL, see: CASL (Anti-Spam Law), CASL Compliance, CASL Compliance Tips, CASL Compliance Errors, CASL FAQs, Contests and CASL.

For more information about the CASL compliance checklists and precedents that we offer for sale, see: CASL Compliance Checklists and Precedents.

Advance fee fraud (aka West African scam, 419 scam or Nigerian scam).

RCMP, Advance Fee Fraud: “Classified advertisements for loan opportunities do not guarantee the legitimacy of a company. Some companies claim they can guarantee you a loan even if you have a bad credit history or no credit-rating at all. They usually request an up-front fee of several hundred dollars. If you send your money to these companies, it is unlikely you will get your promised loan and your advance payment will be at risk. Advance fee loans operating for a criminal purpose generate millions of dollars annually in Canada. Persons with poor credit ratings are usually the key targets and once the ‘loan processors’ receive your money, they usually disappear.”

Advertising.

Advertising Standards Canada, Canadian Code of Advertising Standards: “Advertising is defined in the Code as any message (the content of which is controlled directly or indirectly by the advertiser) expressed in any language and communicated in any medium to Canadians with the intent to influence their choice, opinion or behaviour. Excluded from the definition of “medium” and the application of the Code are: (i) foreign media (namely media that originate outside Canada and contain the advertising in question) unless the advertiser is a Canadian person or entity; and (ii) packaging, wrappers and labels. Also excluded from the application of the Code are political and election advertising.”

Association of Canadian Advertisers: “Advertising is defined as any message, communicated in any medium, the content of which is paid for and/or controlled by the advertiser, with the intent to influence choice, opinion or behaviour.”

Advertising troll.

Consumer Protection BC, “Top Ten Scams 2013 – Just in case a scam is around the corner”: “Consumers posting ads to free online listings like Craigslist to sell a vehicle are the target of unlicensed telemarketing companies. These companies are trolling through online ads to find someone to make a quick buck from. Companies often guarantee to sell vehicles quickly and promise a money-back guarantee. Problem is that these guaranteed vehicle brokers rarely sell your vehicle, rarely provide refunds, and only post your own ad to other free online listings – charging you a $500 fee for things you probably could do yourself for free.”

Advisory opinion.

Under section 124.1 of the Competition Act, any person may apply to the Commissioner of Competition, together with supporting information, for a binding written opinion regarding the application of any provision of the Act. Written opinions can be a practical way for businesses and individuals to reduce potential competition law liability for proposed conduct. A written opinion is binding on the Commissioner if all material facts relating to the proposed conduct have been submitted. If issued, written opinions remain binding for as long as the material facts on which they are based remain substantially unchanged and the conduct is carried out substantially as proposed. Binding written opinions are available, subject to the Commissioner’s discretion to issue them, for proposed conduct only. In other words, the Bureau will not issue advisory opinions for existing business conduct.

Written opinions are available under the following provisions of the Act, among others: resale price maintenance (section 76), exclusive dealing / tied selling / market restriction (77), abuse of dominance (79), civil agreements provision (90.1), conspiracy (45), misleading advertising and deceptive marketing practices (52, 55.1, 74.01, 74.06), deceptive telemarketing (52.1), deceptive prize notices (53), multi-level marketing and pyramid selling (55 and 55.1), performance claims (74.01(1)(b)) and promotional contests (74.06).

See Competition Act section 124.1; Competition Bureau, website, Legal Actions and Opinions section; Competition Bureau, Bulletin, Competition Bureau Fee and Service Standards Handbook for Written Opinions; definition of “written opinion”.

Advocacy advertising.

Advertising Standards Canada, The Canadian Code of Advertising Standards: “’advertising’ which presents information or a point-of-view bearing on a publicly recognized controversial issue.”

Affinity fraud.

Consumer Protection BC, “Top Ten Scams 2013 – Just in case a scam is around the corner”: “When a scam artist targets a group of people who know each other, it is called an affinity fraud. The investment schemes they promote may change or vary over time, but the methods they use to target groups are often the same. To be successful, scam artists need to earn the trust of an influential person in a group, family, or workplace. Once they establish this bond (and this can take time), they use this connection to get their hands on the money of other people in the group. In some cases, they may even pay the influencer to help them out, never telling the person that the investment is really a scam.”

Ambush Marketing.

Phillip Johnson, Ambush Marketing and Brand Protection (Oxford University Press, 2012): “Ambush marketing is any attempt to create an unauthorized or false association with an event thereby interfering with the legitimate contractual rights of the event’s official marketing partners.”

Assumed sale technique.

A type of advertising fraud.

Lisa Campbell, Deputy Commissioner of Competition, Fair Business Practices Branch, Competition Bureau, “Watch What You Say: Views From the Competition Bureau”, presentation at 2012 Competition Law Spring Forum, Toronto (May 2, 2012): An assumed sale technique “[leads] businesses into believing that a sale [has] already taken place … and that payment [is] due.”

Astroturfing.

An online fraud term that refers to the practice of spreading false or fake testimonials for products or services on online review websites, such as Google, Yahoo and Yelp. The artificial grass metaphor refers to the fake “grass roots” of false product testimonials.

Oxforddictionaries.com: “The deceptive practice of presenting an orchestrated marketing or public relations campaign in the guise of unsolicited comments from members of the public”.

Automated calling devices.

CRTC: “Automated calling devices are used to dial telephone numbers and automatically deliver a pre-recorded message. The CRTC’s Automatic Dialing and Announcing Device Rules prohibit telemarketers from using these devices to sell or promote a product or service unless a consumer has consented to be called by them.”

CRTC Unsolicited Telecommunications Rules: “’Automatic Dialing-Announcing Device’ or ‘ADAD’ means any automatic equipment incorporating the capability of storing or producing telecommunications numbers used alone or in conjunction with other equipment to convey a pre-recorded or synthesized voice message to a telecommunications number.”

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SERVICES AND CONTACT

To contact us about a potential legal matter, see: contact

For more information about our firm, visit our website: Competitionlawyer.ca

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Templates/precedents and checklists to run promotional contests in Canada

Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)

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