Current Competition Issues For Digital Marketers

Practical Law Canada Competition has published a new Legal Update, which discusses key current competition and advertising issues for digital marketers in Canada, including the upcoming private right of action rights for the digital marketing sections of the Competition Act. Below is an excerpt with a link to the full Update.

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This Legal Update discusses recent digital marketing related enforcement and other developments that digital marketers in Canada should be aware of. It includes summaries of recent digital marketing related Competition Bureau enforcement and guidance. This Update also includes a summary of the impending private rights of action for the digital marketing provisions of the Competition Act, R.S.C. 1985, c. C-34.

Practical Law Canada Competition

Over the past several years, the digital economy has emerged as a top priority for the Competition Bureau (Bureau). In this respect, in its recent draft 2017-2018 Annual Plan: Competition is key—Creating the conditions for innovation, April 18, 2017 (Draft Annual Plan), the Bureau said that it recognized that the rapid emergence and growth of the digital marketplace had changed the landscape for consumers and businesses and, as such, the “digital economy will remain a key priority in the coming year”.

Some specific digital economy related issues that the Bureau has focused on and recently affirmed in enforcement and policy statements include fake or misleading online endorsements, drip pricing (that is, additional fees not disclosed upfront), and hidden terms and conditions. For more information, see Practice Note, Digital Marketing and the Competition Act and Best Practices for Digital Marketing Checklist.

The Bureau also recently stated that it would focus on high-impact digital economy enforcement cases over the coming year, including work on 53 active cases, and indicated that it may issue new digital economy enforcement guidance (see Draft Annual Plan and News Release, Draft Annual Plan outlines how Bureau will help foster conditions for innovation, Competition Bureau, April 18, 2017). The Draft Annual Plan outlines how the Bureau will help foster conditions for innovation.

In addition, new private rights of action will come into force on July 1, 2017 for the new electronic marketing provisions of the Competition Act, R.S.C. 1985, c. C-34 (Competition Act) (under section 74.011).

These digital marketing issues and developments are discussed in more detail below, together with recent guidance for digital marketers issued by the Bureau.

General Best Practices for Digital Marketers

Some general digital marketing best practices that the Bureau has highlighted most recently in The Deceptive Marketing Practices Digest, Volume 3, May 2, 2017 (Deceptive Marketing Digest) include: (i) do not misrepresent or hide terms and conditions likely to affect a consumer decision.; (ii) do not misrepresent or hide the total cost of a good or service; (iii) ensure that advertising is clearly identifiable as such; and (iv) ensure that endorsements are truthful, substantiated and reflect actual experience, and clearly and conspicuously disclose any material connection between the brand and online endorsers.

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For the full Update see: Current Competition Issues For Digital Marketers.

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SERVICES AND CONTACT

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

My experience includes counseling clients on the application of Canadian competition and regulatory laws and I 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, pricing and distribution, Investment Canada Act and merger matters. For more information about my competition law services see: competition law services.

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