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.”
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.”
Latin for “let the buyer beware”.
Latin for “let the seller beware”.
R. v. Colgate-Palmolive Ltd.,  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.”
Closed loop 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.”
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.”
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 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.”
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 3rd 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.”
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.”
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 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.”
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.”
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.”
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.”
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.”
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.”
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.”
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.”
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.”
SERVICES AND CONTACT
I help clients practically navigate Canada’s advertising and marketing laws and offer Canadian advertising law services in relation to print, online, new media, social media and e-mail marketing.
My Canadian advertising law services include advice in relation to: anti-spam legislation (CASL); Competition Bureau complaints; the general misleading advertising provisions of the Competition Act; Internet, new media and social media advertising and marketing; promotional contests (sweepstakes); and sales and promotions. I also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers and native advertising.
To contact me about a potential legal matter see: contact
For more regulatory law updates follow me on Twitter: @CanadaAttorney