Advertising Law in Canada

Advertising Law
in Canada 2013
Tips and Insights from The Canadian Institute’s
19th Annual advertising and marketing law event

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

Advertising Law in Canada 2013

1.

Margot Patterson
Counsel, Certified Specialist,
Copyright Law
Fraser Milner Casgrain LLP
www.fmc-law.com

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: margot.patterson@fmc-law.com

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www.CanadianInstitute.com/adlaw • 416.927.7936

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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: adam.newman@bc-cb.gc.ca

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.
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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: bhearn@davis.ca
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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.

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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, Trendwatching.com 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: ogleeson@sdimarketing.com
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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: solange.brard@bell.ca

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: fabien.fourmanoit@bell.ca

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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.

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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: arlan.gates@bakermckenzie.com

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.
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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: vprince@blg.com
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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!
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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
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