Greg Joudouin presents the legal and regulatory environment for research in Canada at MRIA's NetGain 2017

1. Net Gain 2017 Conference
—November 30, Toronto—
The Legal and Regulatory
Environment for Research in Canada:
What You Need to Know

2. Do you lay awake at night thinking?
• Am I complying with the law?
• Am I breaking it?
• Are there risks I need to manage?
• Could I face fines, penalties? investigations and
audits?
• Could non-compliance affect my brand?
• Could it create PR nightmares?
• Could I go to prison?
• Will I face the death penalty?

3. “Insert Caveat here”
Yes I’m a lawyer, but I’m not your lawyer. So
while I’m taking about lawyerly stuff, it’s not
lawyerly counsel.
And yes, this slide is a C.Y.A. paper trail,
which is a lawyerly thing to do.

4. Advocacy – why it’s important
• Advocacy, lobbying, government relations, government
affairs, regulatory affairs…
→It’s the representation of a particular cause, industry or
sector before legislators and regulators, with the intent of
informing or shaping policies, laws, regulations and
programs so that they are favourable to the interest you
represent.
• MRIA defends the industry from unwanted or unwarranted
laws and regulations, while protecting it from the activities of
others that are harmful to our industry.

5. Why does Government care?
• Government wants interactions with
Canadians to be legit, not nuisance
• Not overly concerned with MSR
• Boils down to:
– Consumer/Respondent rights
– Privacy protection
– The good functioning of government and
democracy.

6. MRIA Key Messages
• Societal benefit
• Researchers never solicit
• Effective job self-regulating
• Not a major source of complaints
• Jobs and Canadian economy

7. Outcomes
• Mugging and Sugging is now illegal
• Exemption in Do-Not-Call List
• Exclusion from CASL
• Reinstatement of Long-form census questionnaire
• Closure of a Corrections Canada program that had
prisoners conducting survey calls

8. So what does all this mean for
researchers?

9. Key Federal Laws and Regs Relevant to
Market/Survey Research
• Criminal Code – Researchers can’t kill, commit treason. Sorry.
• PIPEDA – Private sector privacy law
• Telecommunications Act – Regulates 'unsolicited telecommunications.’
Establishes Unsolicited Telecommunications Rules and DNCL
• Canada’s Anti-Spam Legislation – Spam, malware
• Canada Elections Act – Election surveys; Voter Contact Registry
• Competition Act – False, misleading representations

10. (1)
Rules that apply to all types of
interactions with Canadians
(in person, by call, by email, etc.)

11. PIPEDA
1. Private sector organizations
2. During a commercial activity
3. Deal with the Collection, Use, Disclosure
4. Personal information
→ Therefore, need consent
Personal Information Protection and the
Electronic Documents Act

12. PIPEDA: 10 Privacy Principles
Principle 1 – Accountability:
“An organization is responsible for personal information
under its control and shall designate an individual or
individuals who are accountable for the organization’s
compliance with the following principles.”
Principle 3 – Consent:
“The knowledge and consent of the individual are required
for the collection, use, or disclosure of personal information,
except where inappropriate.”
Principle 2 – Identifying Purposes:
“The purposes for which personal information is collected
shall be identified by the organization at or before the time
the information is collected.”

13. PIPEDA: Nota Bene
• PIPEDA (sometimes) doesn’t apply to personal
information in the public realm
• Public sector has Privacy Act
• QC, AB and BC have their own privacy laws
• Specific rules:
– Personal health info
– Employee info
– Regulated sectors (e.g., banking)

14. (2)
Rules that Apply to Calling Canadians
(recruitment, interviews, etc.)

15. Competition Act
• Applies to telemarketing calls
• Deals with ‘False and Misleading Representations’, and in
particular, ‘Deceptive Telemarketing’
• We argued for a clause to stop Mugging and Sugging:
Section 52.1(2) Required disclosures:
– (2) No person shall engage in telemarketing unless
– (a) disclosure is made, in a fair and reasonable manner at the
beginning of each communication, of the identity of the person on
behalf of whom the communication is made, the nature of the
business interest or product being promoted and the purposes of the
communication;

16. Telecommunications Act
• All calls
• Enforced by CRTC
• Deals with “Unsolicited Telecommunications”
• Empowers CRTC if ‘undue inconvenience or nuisance’:
Telecommunications Act, S.41 (1) The Commission may, by order,
prohibit or regulate the use by any person of the telecommunications
facilities of a Canadian carrier for the provision of unsolicited
telecommunications to the extent that the Commission considers it
necessary to prevent undue inconvenience or nuisance, giving due
regard to freedom of expression.

17. Telecommunications Act
1. Registered Charity
2. Existing business relationship
3. Political party
4. Political candidate
5. Party association
6. Made for the sole purpose of collecting information for a
survey of members of the public
7. Newspaper subscription
Establishes the Do Not Call List (DNCL)
Section 41.7(1) - Exemptions:

18. Unsolicited Telecommunications Rules
(“UTRs”)
Key regs that stem from the Telecommunications Act
→ Broken into 7 parts. Most relevant to MSR:
Part I: Definitions
Part II: National Do Not Call List Rules
Part III: Telemarketing Rules
Part IV: Automatic Dialing-Announcing Device (ADAD) Rules

19. UTRs – Part I: Definitions
"Solicitation" means the selling or promoting of a product or
service, or the soliciting of money or money's worth,
whether directly or indirectly and whether on behalf of
another person. This includes solicitation of donations by or
on behalf of charitable organizations
"Telemarketing" means the use of telecommunications
facilities to make unsolicited telecommunications for the
purpose of solicitation
→ Part I means that Part II (DNCL) and III (Telemarketing
Rules) don’t apply to MSR

20. UTRs – Part IV: Automatic Dialing-
Announcing Device (ADAD) Rules
Section 2: A telemarketer shall not initiate… a
telemarketing telecommunication via an
ADAD unless express consent has been
provided
→This section means that you need consent to use
robocalls to telemarket

21. UTRs – Part IV: ADAD Rules
Section 4: A person using an ADAD to make unsolicited
telecommunications where there is no attempt to
solicit, shall comply with the following conditions:
– No calls to emergency lines and healthcare facilities
– Restricted calling hours
– No sequential dialing, etc.
– Begin with identifying on whose behalf the call is made
– Begin with contact info (email or postal, toll-free #)
→ This section applies to IVR

22. (3)
Interacting by Electronic Means
(Recruitment, Online Research, etc.)

23. Canada’s Anti-Spam Legislation - CASL
• Electronic messages (emails, text, etc) whose
purpose is to encourage participation in
commercial activity
• The Act defines this as: 'Commercial Electronic
Message’ (CEM)
• If you’re sending a CEM:
– Obtain consent (in most cases, express)
– Provide ID information
– Unsubscribe mechanism

24. Canada’s Anti-Spam Legislation - CASL
If you are not sending a CEM, then CASL doesn't apply.
Therefore, CASL DOES NOT APPLY TO ONLINE RESEARCH per se,
because there’s no commercial activity. But it does apply to Mugging
and Sugging.
Letter from the CRTC, May 2, 2013: “…section 6 of CASL will capture a variety of
typical marketing messages, including the "mugging" and "sugging" types of
messages that your letter references, to the extent that they encourage participation
in a commercial activity. In contrast … survey messages that do not encourage
participation in a commercial activity would not be captured.”
Regulatory Impact Analysis Statement Issued by Industry Canada: “…surveys, polling,
newsletters, messages soliciting charitable donations, political contributions, or other
political activities that do not encourage participation in a commercial activity would
not be included in the definition [of CEM].”

25. (4)
Rules Governing Incentives

26. Question: Are incentives a component of a
research study or are they a solicitation?
Answer: No.
Answer: Depends.
Answer: Maybe.
Answer: Could be both.
Answer: Probably not solicitation but careful…
→Incentives are a tricky area and researchers
need to exercise caution

27. Incentives Offered on a Call:
• No longer a grey area
• Successful convincing CRTC that incentives are
a component of a research study…
– Not an attempt to influence a respondent
– Not an honorarium
– Therefore, NOT a solicitation.

28. Incentives Offered on a Call:
Confirmed in CRTC Compliance & Enforcement Decision 2016-107:
“The Commission acknowledges that the offering of incentives
is a legitimate practice used by the market research industry
when conducting surveys to increase response rates.”
BUT…
“Persons who offer incentives to increase survey response
rates must…ensure that their calls are made for the sole
purpose of collecting information for a survey of members of
the public, and that any incentives are presented in a manner
that will not be perceived as solicitation.”

29. Incentives Offered on a Call:
Important Test
“Survey calls must be made for the sole purpose of collecting
information for a survey of members of the public.”
→I.e., is there a secondary purpose to the call?
“Researchers who choose to offer survey participation incentives
must therefore exercise caution…
…If the offering of the incentive constitutes solicitation – for
example, if it unduly promotes specific products or services –
the Telemarketing Rules would apply.”

30. Incentives Offered by Electronic Means:
• A different law applies than incentives by calls
• Do incentives offered electronically trigger
CASL? Is it a commercial electronic message
(CEM)?
→ Grey area, but Parliamentary review of CASL
creates opportunity

31. Question: Are incentives a component of
a research study or are they a
solicitation?
• MRIA argues that the ‘Sole purpose’ Test from 2016-
107 that applies to calls should apply to incentives
offered electronically
• The Test extrapolated to emails would look like this:
“Is there a secondary purpose to the call email?
“If an incentive is presented in such a way that it
alters the context of a call an email, then the survey
would no longer be the sole purpose of that call email
… and the Telemarketing Rules CASL would apply.”

32. Questions