Competition Chronicle

Competition Chronicle

Competition & Antitrust | Foreign Investment

CASL Private Right of Action Delayed Indefinitely

spyware-2319403Citing the desire for a balanced approach to the needs of individuals and organizations under Canada’s anti-spam law, the Minister of Innovation, Science and Economic Development announced today that he is delaying indefinitely the coming into force of the private right of action provisions (section 51) in Canada’s anti-spam law (CASL).

This important decision is welcome news to domestic and international businesses and other organizations subject to CASL. The private right of action had been slated to come in force on July 1, 2017 and presented a significant risk of class actions and staggering statutory damages.

Parliament is expected to further study the private right of action as part of its scheduled review of CASL to commence in 2017. It is anticipated that further amendments to CASL may be proposed to ensure that Canadian businesses are not put at a competitive disadvantage.

Information about the Private Right of Action

Under the private right of action provisions, a person who alleges that they are affected by another person’s contravention of sections 6 to 9 of CASL or section 5 of the Personal Information Protection and Electronic Documents Act in relation to the electronic harvesting of personal information, or that constitutes reviewable conduct under section 74.011 of the Competition Act(the electronic advertising provisions), may apply to a court of competent jurisdiction for an order and damages.

If a court is satisfied that a person has breached certain provisions of CASL or engaged in conduct that is reviewable under section 74.011 of the Competition Act or a breach of PIPEDA in relation to the electronic harvesting of personal information, the court may order that person to pay the applicant statutory damages (without the need to prove harm) in addition to the actual damages suffered. The statutory damages include the following:

  • in the case of a contravention of the unsolicited commercial electronic message provisions (section 6 of CASL), a maximum of $200 for each contravention, not exceeding $1,000,000 for each day on which a contravention occurred (e.g., up to $200 for each email or other electronic message sent in violation of CASL);
  • in the case of contravention of the software or transmission data provisions (sections 7 or 8 of CASL), a maximum of $1,000,000 for each day on which a contravention occurred;
  • in the case of contravention of the electronic advertising provisions (section 74.011 of the Competition Act), a maximum of $200 per contravention, not exceeding $1,000,000 for each day on which the conduct occurred; and
  • in the case of a contravention Personal Information Protection and Electronic Documents Act in relation to the electronic harvesting of personal information, a maximum of $1,000,000 for each day on which a contravention occurred..

Organizations Should Remain Diligent

Although organizations may have gained a reprieve from the private right of action, organizations will continue to be exposed to enforcement by the CRTC, the Competition Bureau and the Privacy Commissioner of Canada, including administrative monetary penalties up to $10,000,000 and potential personal liability for directors and officers. Organizations should continue to take appropriate steps to ensure that they are fully compliant with CASL. As revealed by our firm’s recent survey, many organizations are falling short when it comes to their understanding of and compliance with certain requirements of CASL – despite the fact that CASL has been in force for nearly three years. In addition, our survey indicates that organizations are not taking simple steps to reduce or even avoid liability in the event of a breach. Among other things, engaging expert legal counsel can help an organization to avoid non-compliance and establish a due diligence defence under CASL.

Understanding the Competition Commission South Africa’s Public Passenger Transport Market Inquiry

pexels-photo-136721On 7 June 2017 the Competition Commission South Africa will commence a market inquiry into the public passenger transport sector. This is the fifth market inquiry to be initiated by the Commission, following inquiries into the LPG, healthcare, grocery retail and banking sectors.

What does the Commission intend to investigate?

In terms of the Terms of Reference (published on 10 May 2017), the Commission will explore how competition in the public passenger transport sector is affected by factors such as:

  • Government regulations which govern the prices that may be charged by certain transport providers, such as metered taxi operators;
  • Government subsidies provided to certain providers, such as PRASA and the Gautrain;
  • Government regulations allocating certain transport routes to particular service providers;
  • Disruptive technology, such as Uber;
  • Gautrain buses being accessible to Gautrain passengers only, and
  • Envisaged expansion of the Gautrain’s network.

The Commission has also indicated that it will consider the ownership patterns and transformation in the sector.

What is a market inquiry?

A market inquiry is a general investigation into the state, nature and form of competition in a market, rather than a narrow investigation of specific conduct by any particular firm.

The Commission, acting on its own initiative, may conduct a market inquiry if it has reason to believe that any feature or combination of features of a market for any goods or services prevents, distorts or restricts competition within that market.

Upon completion of an inquiry, the Commission must publish and submit a report to the Minister of Economic Development, with or without recommendations. These recommendations may include recommendations for new or amended policies, legislation or regulations relating to the sector in question, or recommendations to other regulatory authorities on competition matters.

It is also possible that, in the course of the inquiry, the Commission may uncover illegal conduct, in which case it may initiate a complaint and commence enforcement proceedings against a particular firm.

Which firms could be the subject of this market inquiry?

The Terms of Reference are broad, and indicate that the Commission will investigate all aspects of the land-based public passenger transport industry. This will include investigations into:

  • Minibus taxis;
  • Localised taxis;
  • Metered taxis;
  • App-based taxis;
  • The Passenger Rail Agency of South Africa (PRASA);
  • Metrorail;
  • The Gautrain, and
  • Buses, including commuter buses, scholar buses, long distance buses and tourist buses.

What should affected firms expect during the inquiry?

As set out in the Terms of Reference, the Commission will establish a team that consists of Commission staff, as well as industry experts and/or consultants as and when required. The Commission will also allow all stakeholders an opportunity to provide input into the inquiry process and its outcomes.

Once established, the team will gather and assess information from relevant stakeholders of the public passenger transport industry. This information may be gathered by way of:

  • Questionnaires;
  • Information requests;
  • Calls for written and/or oral submissions;
  • Targeted meetings with key industry stakeholders, and
  • Public hearings.

During the inquiry, the Commission will contact all stakeholders involved in the land based public passenger transport industry in order to gather information in the ways described above.

The Commission aims to complete the public passenger transport market inquiry by May 2019.

New Private Right of Action in Canada for False or Misleading Electronic Advertising

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This post has been prepared in collaboration with Chris Cole of Crowell & Moring law firm. Chris Cole is the Co-Chair of Crowell’s Advertising & Product Risk Management Group in Washington, D.C.

In less than three months, Canada will introduce a private right of action arising from false or misleading representations made in electronic messages. These provisions target false or misleading advertisements in, for example, email and social media and arguably capture website advertising based on the law’s broad definition of “electronic message.” Government-initiated enforcement of these provisions has already taken place through Canada’s Competition Bureau since 2014, which has led to Consent Agreements against Avis, Budget (following a contested application), Amazon, Hertz, and Dollar Thrifty. Even more concerning, the law applies statutory penalties to each violation. The closest United States analog to such a law would be the Telephone Consumer Protection Act, which carries penalties for violation of up to $1500 per violation.

The new private right of action is expected to give rise to significant class action litigation in Canada, including against US and global businesses that engage in digital advertising in Canada. It is also expected to be an attractive method of challenging a competitor’s representations regarding a product or service. Driving these incentives will be the law’s statutory penalties of $200 per occurrence (not to exceed $1 million per day).

The following outlines the nature of this private right of action and take-aways for businesses that advertise in Canada.

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More penalties for digital “drip pricing”

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Hertz and Dollar Thrifty agree to pay $1.25 million

The Competition Bureau announced this week that Hertz and Dollar Thrifty have agreed to pay an administrative monetary penalty of $1.25 million and to implement compliance procedures to resolve the Bureau’s investigation of “drip pricing” by the companies.  “Drip pricing” refers to advertised prices that are not in fact attainable, due to additional non-optional charges that must be paid by consumers.

The Hertz and Dollar Thrifty pricing reps appeared in many media, including websites, mobile apps, and email.    The Bureau took issue with advertised price levels and discounts that ignored mandatory additional fees, as well as inaccurate descriptions of fees as taxes or surcharges imposed by governments.

In recent years, the Competition Bureau has repeatedly targeted drip pricing and misleading descriptions of mandatory fees. Avis and Budget agreed to pay an AMP of $3 million in 2016 to settle similar pricing allegations.  Comwave also settled allegations of drip pricing in ads for its communications services in 2016.

These settlements serve as an important reminder that misleading pricing practices are an enforcement priority for the Bureau.  Misleading price claims – in digital and traditional media – cannot be corrected by subsequent disclosure to a consumer, and may be the subject of significant monetary penalties.

In the digital context, CASL amendments to the Competition Act have enhanced the need for vigilance in email marketing campaigns.  Under these amendments, a false or misleading representation in the sender or subject matter information of a commercial email may be sanctioned, regardless of whether the misrepresentation is misleading in a “material respect”.  Furthermore, conduct contrary to these requirements may be the subject of private action, including class actions, for statutory and other damages, effective July 1, 2017.

All this to say, consistent application of comprehensive internal compliance policies to all digital and traditional marketing campaigns is critical, to avoid significant exposure for non-compliance with Canadian marketing laws.

Investment Canada Act: New Threshold for the Review of Direct Investments

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Effective April 24, 2017, the review threshold under the Investment Canada Act for an investment to directly acquire control of a Canadian business (i) by a WTO investor (that is not a state-owned enterprise) and (ii) by a non-WTO investor (that is not a state-owned enterprise) where the Canadian business that is the subject of the investment is, immediately prior to the implementation of the investment, controlled by a WTO investor has been increased from $600 million to $800 million in enterprise value.  Additionally, in furtherance of an announcement made in the Liberal government’s Fall Economic Statement 2016, Bill C-44 was tabled in the Canadian Parliament on April 11, 2017 which includes an amendment to the Investment Canada Act to increase that direct review threshold to $1 billion; however that amendment is not yet in effect.

For investments to directly acquire control of a Canadian business by WTO investors that are state-owned enterprises and for non-WTO investors that are state-owned enterprises where the Canadian business that is the subject of the investment is, immediately prior to the implementation of the investment, controlled by a WTO investor, the review threshold for 2017 remains at $379 million in asset value.

For investments in Canadian cultural business by non-Canadians, the review thresholds for those investments remain unchanged at 5 million dollars in asset value for direct investments and 50 million dollars in asset value for indirect transactions.

On Second Thought: The Government of Canada Reverses Prior National Security Ruling

complex-664440_1280In what appears to be a dramatic shift in Canada’s foreign investment review policy, the federal government has recently approved the acquisition of ITF Technologies Inc. (“ITF”), a Montreal-based technology firm, by O-Net Communications Holdings Limited (“O-Net”), a Chinese developer of optical networking components, which is said to be effectively controlled by the Chinese government. Applications for ITF’s technologies include directed-energy weapons.

The acquisition of ITF by O-Net first became newsworthy in July 2015 when the former Conservative government ordered O-Net to divest its controlling interest in ITF, which it had acquired through a bankruptcy auction after no other North American company offered to purchase ITF. The order was made under the authority of the Investment Canada Act’s (the “Act”) national security provisions. Under these provisions, the Governor in Council (the federal Cabinet) can, among other things, block—or in the case of O-Net—unwind a transaction if it is injurious to Canada’s national security. In this case, the acquisition was thought to undermine the technological advantages that Canadian and other western militaries had over China.

The notoriety of the transaction grew later in August 2015 when O-Net became the first investor to challenge the government’s decision to block a transaction on the basis of national security concerns. In its application for judicial review, O-Net argued that, among other things: (i) ITF was controlled by non-Canadians prior to the sale in 2015; (ii) its investment in ITF would not provide access to technologies or products to which it did not already have access; (iii) it had increased ITF’s revenues and added almost 50 new engineering jobs; and (iv) the federal government’s order was issued without providing O-Net with any details about the nature and extent of the national security concerns.

In response, the former Conservative government signalled its intent to oppose O-Net’s application. However, a federal election intervened and, after the Liberal Party came into power in October 2015, it engaged in settlement discussions with O-Net which culminated in the original Conservative government divestiture order being set aside and a new national security review being ordered.

Even more surprising was that the second national security review resulted in the Liberal government deciding to allow O-Net’s acquisition of control of ITF. While press reports indicated that conditions designed to limit the potential risk that could compromise national security had been attached to Canada’s approval, Minister Bains’ explanation for the reversal  was that “the government has acted on the full record of evidence and advice provided by Canada’s security and intelligence experts”.

The Conservative public safety critic’s response to this announcement was to suggest that the Liberal government has not “proved anything has changed that would merit reconsideration.”  The critic’s comments highlight two longstanding complaints about the Act’s national security review process: (i) it is opaque for both investors and the public; and (ii) the process is politically-driven. To address the first complaint, the federal government issued, for the first time, Guidelines on the National Security Review of Investments in December 2016 (see our previous post on those guidelines here). However, it appears that there is no easy fix to the second complaint.

Given that trade and investment ranks high in Canada’s China policy, it is likely that this decision is evidence of a new openness to Chinese investment in Canada, which should result in many more Chinese investments being made and very possibly in some of Canada’s sensitive industry sectors.

Kobo’s Quest for Status Quo in the E-books Market: A Never Ending Story

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On February 17, 2017, Toronto-based e-books retailer Rakuten Kobo Inc. (“Kobo”) sought judicial review of the consent agreements reached between the Commissioner of Competition (“Commissioner”) and three e-books publishers earlier this year.

The consent agreements reached between the Commissioner and each of Hachette, Macmillan, and Simon & Schuster are aimed at resolving the Commissioner’s concerns arising from alleged agreements that prevent or lessen competition substantially, which are reviewable under section 90.1 of the Competition Act (the “Act”). The Commissioner, however, was unable reach agreement with a fourth publisher, HarperCollins, and has now filed an application for a prohibition order under section 90.1.

Pursuant to the terms of the consent agreements, publishers are prohibited from using an “agency” model—a model wherein publishers set prices and pay retailers, such as Kobo, a commission. The consent agreements also restrict the ability of publishers to use most favoured nation clauses in their agreements with retailers for a period of 3 years. These clauses prevent retailers from negotiating their own agreement with publishers.

Kobo’s application for judicial review is not at all surprising. The consent agreements mentioned above are recent iterations of agreements that were first reached between the Commissioner and each of Hachette, Macmillan, Simon & Schuster, and HarperCollins in February 2014 but were later rescinded by the Competition Tribunal (the “Tribunal”) at the behest of Kobo.

Among other things, Kobo alleged that the consent agreements struck between the Commissioner and the four e-books publishers in 2014 would negatively impact its ability to effectively compete in the Canadian marketplace. Last year, the Tribunal partially found in Kobo’s favour, nullifying the 2014 consent agreements on the basis that the Commissioner did not sufficiently identify in the consent agreements the six elements of section 90.1 of the Act. However, the Tribunal rejected Kobo’s submissions that the terms of the consent agreements were unenforceable.

Now, more than 3 years later, Kobo appears to be right back where it first started—this time, however, in the Federal Court. Kobo’s decision to file an application for judicial review in Federal Court—as opposed to an application for rescission or variance under subsection 106(2) of the Act before the Tribunal—undoubtedly stems from the Tribunal’s earlier pronouncement (in an adjunct reference proceeding) of its ability to award such an order. In that proceeding, the Tribunal held that:

  • It may confirm that the terms of a consent agreement are within the “purview” of the type of order that the Tribunal would be able to issue in respect of the particular reviewable conduct at issue;
  • It may confirm that the elements of the alleged reviewable conduct have been identified and confirmed; and
  • Applicants may seek to establish that the terms of a consent agreement are unenforceable or would lead to no enforceable obligation.

Investment Canada Act: National Security Review Powers Rarely Invoked

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Canadian government responses to two requests made by Fasken Martineau under the Access to Information Act (AIA) and the recent publication by Innovation, Science and Economic Development Canada (ISED) of its Annual Report Investment Canada Act 2015-16 evidence that Canada’s power to conduct national security reviews under the Investment Canada Act (ICA) in respect of foreign investments in Canada has rarely been invoked during the almost 8 years that such power has existed.

Because of the confidentiality obligations imposed on government officials by the ICA and the sensitive nature of the assessment process which is intended to safeguard Canada’s national security interests, the Government historically has been reluctant to comment publicly on specific investments that it has subjected to national security reviews or on the review process in general.  For a considerable period of time, this reluctance extended to even providing statistics on the number of national security reviews that it had actually undertaken.

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CASL, the Competition Act and Class Actions:  A Primer for Forthcoming Private Enforcement

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Now that 2017 has arrived, we are less than seven months away from private enforcement (particularly through class actions) for false or misleading electronic messages. CASL’s  amendments to the Competition Act sought to address deceptive marketing practices in the electronic marketplace. Three reviewable practices were created – all within section 74.011 of the Competition Act – that focus on false or misleading representations in electronic messages, such as in the subject line of an email, the body of an email and in URLs and metadata.

To date, public enforcement of section 74.011 through the Competition Bureau has taken place on two occasions: the Avis and Budget Consent Agreement (following a contested application before the Competition Tribunal) and the Amazon Consent Agreement.

As discussed below, private enforcement of section 74.011 of the Competition Act by way of class actions is forthcoming.  Companies that engage in any form of digital marketing are best served by being proactive to prevent becoming a defendant of choice.

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The Bicycles case: Silent tandem riders beware

 

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The passive attendee in meetings at which potentially collusive conduct takes place has recently been considered further and developed by the South African Competition Appeal Court in the ‘bicycles case’.

Previously addressed by the South African Competition Tribunal in DPI Plastics Pipes (2012), the Tribunal concluded that an attendee simply cannot stay silent nor adopt an ambiguous stance if the content of discussion between competitors turns to potential co-operation, conspiracy or collusion. There is an obligation to overtly disagree and distance oneself from the conduct discussed or proposed, even if one has been innocently lured into such discussions. A failure to do so will lead to an inference that the competitor concerned formed part of the unlawful agreement.

In the Omnico Cool Heat ‘bicycles case’ the Appeal Court dismissed two companies’ appeal against findings of a contravention and consequent fine imposed for their participation in a cartel affecting pricing in bicycle manufacturing and supplies, rejecting arguments that the companies had distanced themselves from the anti-competitive conduct.

The Competition Tribunal found 21 bicycle and bicycle part manufacturers and suppliers guilty of indirect price fixing.  The Competition Tribunal concluded that these manufacturers and suppliers agreed to collectively raise their recommended retail prices in order to boost their retail profit margins. Approximately 60 industry wholesalers and retailers attended a September 2008 meeting. Agendas for the meeting were distributed in advance and minutes from the meeting were subsequently posted on social media available to the cycling community.  The key issue was whether silent attendance or participation without protest could be regarded as cartel behaviour.

The Appeal Court discussed and endorsed the European competition jurisprudence on the principle of passive attendance at collusive meetings. The court found that there is a clear duty to speak out and establish a distance from any potential cartel discussion or conduct. Where attendees receive advance notice of discussion on competitive sensitive matters between competitors, as there was in this case with agenda items spelled out, even greater caution is to be exercised in attending any such meeting.

In a noteworthy development, the Appeal Court also confirmed that, given ‘the complex and clandestine nature’ of cartel behaviour, the correct approach of the competition authorities will be to examine the cumulative effect of the conduct, both passive and active, in its context to determine whether it constitutes cartel behaviour. That effect, taken as a whole, will be evaluated and can be equally compelling as the much sought after ‘smoking gun’ in cartel investigations.

It is therefore clear than a party cannot silently go along for the ride should the track prove to be off-course, but rather an attendee must call a stop to the journey and make it clear that it does not agree with the conduct proposed in order to successfully defend claims of participation in cartel activity.