Advertising Law in Canada


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In January 2013, Canada’s top advertising law experts gathered to share the latest information on the country’s most pressing advertising law issues. It was an amazing 2 day event that brought together delegates from across the country. This ebook contains some of the key takeaways from various presentations throughout the event.

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Advertising Law in Canada

  1. 1. Advertising Law in Canada 2013 Tips and Insights from The Canadian Institute’s 19th Annual advertising and marketing law event
  2. 2. Contents In January 2013, Canada’s top advertising law experts gathered to share the latest information on the country’s most pressing advertising law issues. It was an amazing 2 day event that brought together delegates from across the country. This ebook contains some of the key takeaways from various presentations throughout the event. 1. 2. 3. 4. 5. 6. 7. 8. 9. UGC and the new Copyright YouTube Clause The “credulous and inexperienced” consumer Sponsorship agreements Sponsorship activation and ambush marketing Negotiating sponsorship agreements Mastering the new challenges of running compliant contests Know the jurisdictions, laws and regulators that affect you Online accessibility for all You don’t need to sacrifice security or business interests in order to protect privacy Advertising and Marketing Law 2014 SAVE THE DATE! January 21 & 22, 2014
  3. 3. Advertising Law in Canada 2013 1. Margot Patterson Counsel, Certified Specialist, Copyright Law Fraser Milner Casgrain LLP MARGOT PATTERSON practises with FMC’s Intellectual Property, Communications Law, Competition Law, and Entertainment|Sports|Media Practice Groups. Designated by the Law Society of Upper Canada as a Certified Specialist in copyright, Margot is formally recognized as a leader in this specialized field and regularly advises clients on licenses for the acquisition and use of copyright-protected content. Before joining FMC, Margot was General Counsel and Vice-President, Legal Affairs for the Canadian Association of Broadcasters. UGC and the new Copyright YouTube Clause A new provision of the Copyright Act, broadly known as the “YouTube Clause” or “Mash-up Clause” (section 29.21), allows individuals to create their own content by combining or using existing copyright material. Examples include creating a “mashup” of clips as a new work, or adding music to a personal video. Marketing folks should note the important conditions attached to this exception: an “individual” must be the one to create the new work (the mashup); the purpose must be non-commercial; the source must be mentioned (where reasonable); the individual must have reasonable grounds to believe that the source material was non-infringing; and there must not be any “substantial adverse impact” on the copyright holder’s exploitation of his or her work. Email: Back to Contents • 416.927.7936 Join the conversation! Follow us: #ciadlaw @CI_Legal
  4. 4. Advertising Law in Canada 2013 2. Adam Newman Counsel, Competition Bureau Legal Services Justice Canada ADAM NEWMAN graduated from Dalhousie Law School in 2001 and clerked at the Federal Court in Ottawa before being called to the Ontario Bar in 2002. Since that time, he has worked as counsel at Competition Bureau Legal Services, Justice Canada, providing strategic legal advice on a variety of matters. He has been involved in many of the Competition Bureau’s misleading advertising cases, most notably the Sears litigation before the Competition Tribunal, and the tobacco “light” and “mild” inquiry. Email: The “credulous and inexperienced” consumer In Richard v. Time, 2012 SCC 8, the Supreme Court of Canada held that in order to determine whether an advertisement is misleading, one must assess the “general impression” given to a hypothetical “credulous and inexperienced” consumer. The phrase “general impression”, which was considered by the court in Time, appears in several provisions of the Competition Act. Whether and how the standard articulated in Time will be applied to the misleading advertising provisions of the Competition Act remains to be seen. While the word “credulous” might be interpreted as “naive” or “gullible”, in Time the court stated that a “credulous” consumer is one who is “prepared to trust”. From a public policy point of view, there may be some value in promoting conditions that encourage consumers to trust the general impression of the representations made to them by merchants. The application of the “credulous and inexperienced” consumer standard would not only be good for individual consumers; it could also encourage businesses to innovate. When businesses provide clear and complete information to consumers, those consumers become well-informed. There is evidence that well-informed consumers demand improved product quality and a greater variety of products, and that these demands encourage businesses to innovate. Back to Contents • 416.927.7936 Join the conversation! Follow us: #ciadlaw @CI_Legal
  5. 5. Advertising Law in Canada 2013 3. Bill Hearn Counsel Davis LLP BILL HEARN practices several specialized areas of business law, including advertising & marketing, competition, and regulatory. Bill has a high BV® Distinguished peer and client rating in Martindale & Hubbell and is listed in The Canadian Legal Lexpert Directory and in The Best Lawyers in Canada as a leader in Advertising and Marketing Law. He is a member of the Canadian Marketing Association’s Ethics and Privacy Committee and is a director and executive committee member of the National Advertising Benevolent Society. He is a frequent writer and presenter on topics relating to his specialized areas of practice including the chapter on Misleading Advertising and Marketing Practices in Fundamentals of Canadian Competition Law, Canada Law Book. Sponsorship Agreements An effective and durable sponsorship agreement usually specifies: (a) the sponsor’s rights (including the categories of exclusivity and carve-outs, the possibility of rights changing during the term, and the rights of renewal) (b) a flexible dispute resolution mechanism and associated tiered remedies (c) a fair and reasonable compensation adjustment if the rights holder is unable to keep its promises, for instance, due to lock-outs and/or ambush marketing over which the rights holder may have some control. Email: Back to Contents • 416.927.7936 Join the conversation! Follow us: #ciadlaw @CI_Legal
  6. 6. Advertising Law in Canada 2013 4. Sponsorship Activation and Ambush Marketing Jolan Storch General Counsel Canadian Olympic Committee A sponsor’s valuation of the “total price” they pay for rights is highly dependent upon the security they have in knowing their investment is protected. Counsel’s job is to ensure they understand fully the rights and obligations being promised and how that will play out in the terms and conditions. The devil is in the details. Back to Contents • 416.927.7936 Join the conversation! Follow us: #ciadlaw @CI_Legal
  7. 7. Advertising Law in Canada 2013 5. Oliver Gleeson Vice-President Business Development & Corporate Counsel SDI Marketing OLIVER GLEESON’s unique and specialized skill set of marketing and law has helped transform SDI into a boutique agency covering the entire range of the marketing spectrum. Oliver’s client and project portfolio is an incredibly diverse mix of brains-and-brawn consulting and execution, specializing in the following: large scale iconic live events; sports marketing; sponsorship and negotiation; social media and viral marketing; in-store marketing; special events; public relations; and advertising and marketing law consultation. Oliver was called to the Ontario Bar in 1998, practicing Insurance Defence Law prior to making the fundamental career shift in 2001 to SDI Marketing. Negotiating Sponsorship Agreements Increase your value as counsel by going “beyond the legal”. Strive to understand the objectives of the Sponsorship by deeply immersing yourself into the mindset of your marketing counterparts (they are not the enemy). Avoid analyzing Sponsorship Agreements in a vacuum. For resources, consider joining the Sponsorship Marketing Council of Canada (SMCC) or attending the annual SMCC awards Conference. In addition, “Activative”, a leading U.K. Sponsorship Agency, provides a free download on its website that intelligently captures leading sponsorship case studies from around the world - both the successes and failures. Finally, is also another free subscription which captures the innovation and creativity of marketers that are often applied in a sponsorship context. These materials will boost your “marketing brainpower” and provide you with broader perspective in your sponsorship legal analysis. Email: Back to Contents • 416.927.7936 Join the conversation! Follow us: #ciadlaw @CI_Legal
  8. 8. Advertising Law in Canada 2013 6. Solange Brard Senior Business Lawyer BCE Inc. SOLANGE BRARD is part of the Advertising, Sponsorship and Brand Group and specializes in wireless products and services in retail, consumer and business markets. Ms. Brard is lead advertising senior counsel for high-profile initiatives which include industry-leading and first-to-market products, strategic campaigns and promotional contests. She advises on all aspects of advertising law including comparative advertising, product claims, price positioning, packaging and labeling and copy for all media (social media sites, Internet, print, radio, outof-home and television). Email: Fabien Fourmanoit Counsel BCE Inc. FABIEN FOURMANOIT is based in Montreal, his primary responsibility is to provide legal advice relating to consumer protection matters. Until recently, he was responsible for providing legal advice regarding the promotion of Bell’s products and services, across all traditional and new media. He has regularly advised on issues regarding product claims, comparative advertising, price positioning, packaging, promotional contests, French language requirements, and privacy. Prior to joining Bell, he was an associate with Borden Ladner Gervais LLP. Email: Back to Contents • 416.927.7936 Join the conversation! Follow us: #ciadlaw @CI_Legal
  9. 9. Advertising Law in Canada 2013 6. (continued) Mastering the New Challenges of Running Compliant Contests • Knowing your audience, obtaining a proper waiver and ensuring the participant is capable of providing free and informed consent is key – but it won’t save an organization from its own negligence or from a contest that is inherently too risky. • It has become commonplace to address contests gone sour using social media. While it can be a helpful tool, speak with your lawyer before your social media nightmare goes viral. • When running a contest, be prepared for the worst. Back to Contents • 416.927.7936 Join the conversation! Follow us: #ciadlaw @CI_Legal
  10. 10. Advertising Law in Canada 2013 7. Arlan Gates Partner Baker & McKenzie LLP ARLAN GATES is a member of the Firm’s Global Antitrust & Competition and Global IT/Communications practice groups. He practices extensively in both areas, including areas such as online advertising, direct marketing and anti-spam regulation, marketing-related privacy, online consumer protection, social media, communications law, and antitrust and competition regulation including in the consumer and technology sectors. He joined Baker & McKenzie in 1999, was called to the Ontario bar in February 2002, and has also worked in the Firm’s Sydney office. Email: Know the Jurisdictions, Laws & Regulators that Affect You • The rise of mobile exemplifies the interdisciplinary and multijurisdictional nature of advertising and marketing laws – and their growing convergence with privacy laws, from location-based marketing, to behavioural advertising, to anti-spam. • In many countries, agencies in multiple fields – from competition and consumer protection, to privacy and communications – are now concerned with enforcing new or strengthened laws affecting advertising and marketing, with the common goal of fostering consumer confidence and trust. • At the same time, regulators are increasingly looking to the highest standard, mirrored by trends in private litigation. Increasingly, relevant laws carry substantial consequences for non-compliance, despite what may be a lack of clarity in their application, or of consistency and harmonization across borders. • More than ever, companies that advertise and market to consumers need to understand the implications of these activities, and how, where and by whom they are regulated, and to factor this information into their risk assessment and compliance plans. Back to Contents • 416.927.7936 Join the conversation! Follow us: #ciadlaw @CI_Legal
  11. 11. Advertising Law in Canada 2013 8. Victoria Prince Partner Borden Ladner Gervais LLP VICTORIA PRINCE practises in the Corporate Commercial Group and has a general business law practice. She is the Business Department Leader in the Toronto office, the National and Regional Leader of the Charities and Not-for-Profit Law focus group as well as the Toronto Regional Leader of the Advertising and Sponsorship Group. Her work includes corporate governance, not-for-profit and charities, advertising and sponsorship, technology, trademarks and licencing and she advises clients on governance and strategic initiatives, advising on day-to-day business issues and reviewing and drafting agreements. Online Accessibility For All When considering the interaction of promotional activities and IT, most businesses these days are likely to have the subject of Canada’s anti-spam legislation on their radar or, perhaps, other issues relating to privacy, consent and the use of information in marketing. Keep in mind, however, the Accessibility for Ontarians with Disabilities Act, 2005, which will require businesses to work with their IT department/service provider on making their websites accessible pursuant to stated guidelines. By January 1, 2014, designated public sector organizations and large organizations will need to have their new websites and content compliant with this Act. By January 1, 2021, all of their websites and content will need to comply with the Act. Compliance may impact on some of the marketing activities you might otherwise wish to engage in – be aware of the rules before they impact on you. Email: Back to Contents • 416.927.7936 Join the conversation! Follow us: #ciadlaw @CI_Legal
  12. 12. Advertising Law in Canada 2013 9. Ann Cavoukian, Ph.D. Information and Privacy Commissioner Ontario, Canada Dr. Ann Cavoukian is recognized as one of the leading privacy experts in the world. Her concept of Privacy by Design seeks to proactively embed privacy into the design specifications of information technology and accountable business practices. In October 2010, regulators at the annual International Data Protection and Privacy Commissioners in Jerusalem, Israel unanimously passed a landmark Resolution recognizing Privacy by Design as an essential component of fundamental privacy protection. This was followed by the U.S. Federal Trade Commission’s inclusion of Privacy by Design as one of its three recommended practices for protecting online privacy – a major validation of its significance. You don’t need to sacrifice security or business interests in order to protect privacy Do the opposite – move beyond the dated zero-sum paradigm of “either/or,” “win/lose,” and advance to a “positive-sum” approach which allows you to achieve both privacy and security, privacy and business interests, or any other functionality. You need only to replace the “vs.” with an “and.” Lead with Privacy by Design and embed privacy directly into your technology, business operations and networked infrastructure. Instead of treating privacy as an after-thought –– be proactive and prevent the privacy harm from arising – treat privacy as the default condition. If you don’t lead with Privacy by Design, you may end up with Privacy by Disaster. It’s your choice. Good privacy is good for business. Organizations can gain a sustainable competitive advantage by respecting consumer privacy – attracting customer confidence, trust and loyalty. The information management practices that your business follows and the security of your customer’s information are among the most important issues that you must address today. Your customers are following this closely. Be smart and embed Privacy, by Design. Your customers will thank you! Back to Contents • 416.927.7936 Join the conversation! Follow us: #ciadlaw @CI_Legal
  13. 13. Save the date for next year’s event! The Canadian Institute’s Want more of this great information? Last year’s event was broadcast online, and you can purchase the archived version for only $595. Follow the link below to learn how you can get all the information you missed this year! Find out more here! 20th Annual advertising and marketing law January 21 & 22, 2014 Click here and send us an email with your information to make sure you get all the details as they are released. Back to Contents • 416.927.7936 Join the conversation! Follow us: #adlawci @CI_Legal