Marketing & Advertising

Introduction

In a digital economy, there has been an increasing amount of scrutiny regarding technology’s impact on consumers and competition. One key question is whether privacy should be considered a dimension of competition? That is to say, is privacy relevant to the analysis of competitive effects?

Competition law incorporates many non-price dimensions of competition, including

The front half of 2019 has seen a number of important competition law developments in Canada. In addition to a new Commissioner, a different procedural approach to the efficiencies defence in merger review and an increased focus on the digital economy, there have also been a number of consent agreements in the deceptive marketing space

In recent years, advertisers have increasingly established commercial relationships with online personalities or “influencers”, who market their products through various digital platforms and social media. The prevalence of “influencer marketing” has become an emerging frontier for the regulation of deceptive marketing in Canada and abroad.

Digital Marketing in Canada

In Canada, issues regarding misleading representations

The Federal Government has announced the creation of a 10-point Digital Charter, which will involve, among other things, updating the Privacy Act. The Digital Charter will outline what Canadians can expect from both the government and the private sector as it relates to the digital landscape. This initiative is geared towards providing greater transparency

The 67th Annual American Bar Association Spring Antitrust Meeting was held in Washington, D.C. from March 26-29, 2019. Over 3,300 competition and consumer protection professionals from more than 68 jurisdictions attended the Spring Meeting, including lawyers, economists, enforcers, academics and members of the judiciary. Seven members of Fasken’s  Antitrust/Competition & Marketing Group represented

Ad Standards announces new process for handling competitor advertising complaints.

Effective Monday, February 11, 2019, Ad Standards (ASC) will implement a new process for handling complaints between competitor advertisers.  While ASC has offered a confidential procedure to deal with such disputes since 1976, it recently conducted a review to determine if the dispute resolution service

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

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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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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

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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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