Advertising & Marketing

Transcription

1 ALM PA01:ALM MASTER.qxd 24/11/ :38 PM Page 1 G U I D E T O T H E L E A D I N G L A W Y E R S I N C A N A D A B 1 Brian Fraser Susan Vogt Christopher Oates Gowling Lafleur Henderson LLP Advertising and marketing law in Canada is governed by federal and provincial laws, as well as self-regulatory codes and policies, and encompasses a multitude of legal issues including consumer protection, intellectual property and privacy. This paper is a summary of some of the most important developments in Canadian advertising law in Tough New Consumer Product Safety Legislation The Canada Consumer Product Safety Act (CCPSA), which creates a new system for regulating the safety of consumer products, came into force on June 20, The CCPSA replaces the system that previously existed under the Hazardous Products Act (HPA). The CCPSA applies to consumer products, which are defined to mean all products, components, parts, accessories and packaging, obtained by a person for non-commercial use. There are a number of exemptions, consisting mainly of products that are subject to detailed regulatory requirements under other legislative schemes. Such exempt products include cosmetics, drugs, foods, natural health products, vehicles, firearms and animals. Interestingly, Health Canada has taken the position that while such products are exempt from the CCPSA, their containers nevertheless fall within the definition of consumer product. As such, even manufacturers of exempt products will be subject to the record-keeping and reporting requirements under the CCPSA. The new system bans the sale, production, importation or advertisement of certain listed consumer products, including many which had been previously banned under the HPA. The CCPSA also permits the government to create regulatory requirements for consumer products, and bans the sale or advertising of consumer products that do not meet those requirements. The CCPSA contains several broad prohibitions relating to consumer products which are a danger to human health or safety or which are the subject of a recall order, and prohibits the manufacture and importation of such products. Persons will be prohibited from selling or advertising consumer products if they have knowledge that such products pose a danger or are the subject of a recall order. It is prohibited to advertise, package, label or sell a consumer product in a manner that may create the erroneous impression that a dangerous product is innocuous. Record-Keeping Requirements and Incident Reporting The CCPSA places new record-keeping requirements on persons who manufacture, import, advertise or sell consumer products. Persons in the distribution chain must maintain records regarding who the consumer product was purchased from and, in the case of persons other than a retailer, to whom it was sold. Retailers need only maintain a record of the date and location where the product was sold. These records must be kept for six years from the end of the year when the product is sold, and must be maintained in Canada. Manufacturers and importers of consumer products are also required to report to the Minister of Health any incidents arising from the use of a consumer product that have resulted, or may be expected to result, in a death, a serious injury, or a serious adverse health effect. This incident reporting is of significant concern to retailers, who may receive a substantial number of product returns. In light of the reporting obligation contained in the CCPSA, retailers will be responsible for determining if a return could give rise to an obligation to report an incident and, if so, for reporting the incident. Each participant in the distribution chain having an obligation to report incidents will want to ensure that they have standard operating procedures in place to determine whether an incident has occurred, including: gathering the necessary information in order to report to Health Canada, having experts on hand to assist in the evaluation of whether or not the consumer product caused the event and, if an incident is determined to have occurred, ensuring that notice is delivered within the required timeframe. Importers and manufacturers will likely also want to ensure they will have access to the returned consumer product in the event testing of the implicated product is required. These provisions are intended to assist Health Canada in circumstances where an incident relating to a product results in a death or serious injury, or where a product defect is expected to lead to a death or injury. New Enforcement Powers and Penalties Inspectors charged with the enforcement of the regulatory system created by the CCPSA have powers much broader than those that existed under the HPA. The CCPSA gives inspectors the right to enter any place they have reasonable grounds to believe contains consumer products in order to verify compliance. Any articles subject to the CCPSA which are found on site may be subject to examination, testing, or seizure for any time that may be necessary. Previously, inspectors could only enter premises where they had reasonable grounds to believe that the premises contained a hazardous product, in order to examine the products, or to seize products or materials they believed to be in contravention of the HPA. The CCPSA also provides the Minister of Health with the power to issue mandatory product recalls where a consumer product is believed to be a danger to health or safety. Where a manufacturer or retailer does not comply

2 ALM PA01:ALM MASTER.qxd 24/11/ :38 PM Page 2 B L E X P E R T / A M E R I C A N L A W Y E R with a recall order, or where the Minister has reason to believe that a product is in contravention of the CCPSA, the Minister may order the manufacturer or retailer to stop the manufacture, sale or advertisement of the product, or take any other measure considered necessary. Such powers did not exist under the HPA, and Health Canada was obligated to rely on the cooperation of manufacturers and retailers to conduct voluntary product recalls. Both the financial penalties and potential prison terms which may be imposed under the CCPSA are greater than those under the HPA (see table below). The creation of two categories of violations offenses punishable by strict criminal penalties, and violations punishable by less severe civil penalties is expected to provide Health Canada with a range of enforcement options based on the perceived severity of the case. However, where Health Canada elects to pursue a case as a violation, it will be precluded from pursuing it as a criminal offense. All parties involved in the manufacture, importation, advertisement and sale of consumer goods should ensure they have standard operating procedures in place to comply with the CCPSA. In particular, persons in the distribution chain for consumer products will need to have policies to govern record keeping and the receipt and review of customer complaints. If necessary, they must be prepared to file a mandatory incident report. To assist in meeting these requirements, ensure you have information from the supplier confirming that the product is safe and in compliance with the CCPSA. 2. New Anti-Spam Legislation Canada s Anti-Spam Legislation (CASL), is intended to address the sending of unsolicited spam, as well as other Conduct Maximum penalty under the HPA Maximum penalty under the CCPSA Advertise, manufacture, or sell a prohibited product, or a product that does not meet regulatory requirements C$100,000 and/or six months imprisonment (summary conviction) C$1,000,000 and/or two years imprisonment (conviction on indictment) Classified as offense and subject to criminal penalty C$250,000 and/or six months imprisonment (summary conviction, first offense) C$500,000 and/or 18 months imprisonment (summary conviction, subsequent offense) C$5,000,000 and/or two years imprisonment (conviction on indictment) Offenses committed knowingly or recklessly Contravening a recall order, or an order to take measures N/A Classified as offense and subject to criminal penalty C$500,000 and/or 18 months imprisonment (summary conviction, first offense) C$1,000,000 and/or two years imprisonment (summary conviction, subsequent offense) A fine at discretion of the court and/or five years imprisonment (conviction on indictment) N/A Classified as a violation and subject to a civil penalty Administrative monetary penalty to be set by regulation, but not to exceed C$5,000 for a non-profit organization, and C$25,000 in any other case

3 ALM PA01:ALM MASTER.qxd 24/11/ :38 PM Page 3 G U I D E T O T H E L E A D I N G L A W Y E R S I N C A N A D A B 3 threats to electronic commerce, such as identity theft, phishing and spyware. Expected to come into force in 2012, CASL is intended to be technology neutral, (although many of those who have commented on the draft regulations have challenged this aspect of the legislative scheme), and will apply to commercial electronic messages sent to electronic addresses, including accounts, instant messaging accounts and other analogous technologies. Under CASL, it will be necessary to have either the express or implied consent of the recipient, in order to send unsolicited commercial electronic messages. Further, such messages will be required to contain prescribed information that identifies the person who sends them, as well as an unsubscribe mechanism complying with the statutory and regulatory requirements. In July 2011, the Canadian Radiotelevision and Telecommunications Commission (CRTC) and Industry Canada published proposed regulations that if adopted would provide the substantive details of these new requirements. While these regulations may be amended before they come into force, they are of interest as an indication of the form the requirements under CASL may take. Disclosing the Person who Sends the Message The CRTC regulations outline the specific information that will be required in electronic messages, and the requirements for requests for consent to send electronic messages. Further, they prescribe that the unsubscribe mechanism required in such messages must be presented clearly and prominently, and be capable of activation in no more than two clicks or an equivalent level of efficiency. When CASL comes into force, under the proposed CRTC regulations, electronic messages will need to include the following information: The name of the person who sent the electronic message and, if different, the name of the person on whose behalf it was sent, as well as a statement identifying which person sent the electronic message on whose behalf it was sent; and The physical and mailing addresses, telephone number, address and web address of the person who sent the message and, where applicable, of the person on whose behalf the message was sent. Where it is not practicable to include the above information in the commercial electronic message itself, the CRTC regulations include a key exception that will allow this information and the unsubscribe mechanism to be provided via a clearly and prominently labelled oneclick link to a website that contains them. This exception will likely be essential for messages subject to space constraints such as text messages and, potentially, for messages through social media platforms. Requesting and Using Consent to Send Commercial Electronic Messages The CRTC regulations provide that information required in a commercial electronic message must also be included in a request for consent to send such messages; however, it would also be necessary to identify the purposes for which consent is sought, and to state that consent may be withdrawn at any time. Interestingly, the regulations state that a request for consent must be in writing and do not provide for verbal requests for consent, even if these are recorded. The Industry Canada regulations provide definitions of a family relationship and a personal relationship, thus determining the scope of a broad exception to CASL. Neither the consent nor the disclosure requirements will apply to electronic messages sent by or on behalf of someone with whom the recipient has a family relationship, defined as a blood relationship, marriage, common-law partnership, or adoptive relationship, and including persons connected by a blood relationship to such individuals. Similarly, the requirements for electronic messages will not apply to messages sent by or on behalf of someone with whom the recipient has a personal relationship established through at least one in-person meeting and a two-way communication within the previous two years. As proposed, the personal relationship exception would not extend to relationships established solely online, such as relationships on many social media platforms. The Industry Canada regulations also specify the uses that may be made of consent obtained when the person on whose behalf it is sought is not known, as is frequently the case for third-party mailing lists. In such cases, the person who first obtained the consent may authorize the recipient of the list to use it. However, the ultimate user of the list must identify the person who obtained the consent in their electronic messages, and the unsubscribe mechanism must allow the recipient of the message to withdraw consent not only from the person who sent the message, but also from the person who obtained the consent as well as any other person they authorized to use it. Both the CRTC regulations and Industry Canada regulations are currently in draft form, and may be amended prior to coming into force as a result of the consultation process. Enforcement The CRTC will be the regulatory agency responsible for enforcing CASL and pursuing monetary penalties. Violations will be punishable by a potential administrative monetary penalty of up to C$1,000,000 in the case of an individual, and up to C$10,000,000 in the case of a corporation. In addition to this, CASL also

4 ALM PA01:ALM MASTER.qxd 24/11/ :38 PM Page 4 B L E X P E R T / A M E R I C A N L A W Y E R creates a private right of action that will permit individuals to seek compensation for damages suffered as a result of a violation, and specified monetary penalties in respect of each violation. Preparing To Comply with CASL A coming into force date for CASL has yet to be announced; however, it is expected to be in After it comes into force, CASL allows for a three-year transition period (from the date on which the Act comes into force) during which businesses may rely on implied consent to send electronic messages to persons with whom they have an existing business relationship or non-business relationship that includes the sending of electronic messages. In such cases, the recipient is still permitted to withdraw their consent at any time. Existing business relationships will include persons who purchased a good or service within the two years immediately prior to the electronic message, or who inquired about a good or service within six months prior to the message. Apart from this exception, when CASL comes into force, it will require many businesses to reconsider their existing consents for electronic marketing, and to ensure that future requests for consent and electronic messages are in compliance. Businesses involved in electronic marketing should consider the following practices in preparation for CASL: Review your existing consents to contact consumers. Existing express consent will survive the coming into force of CASL. Seek additional express consents to electronic marketing before CASL comes into force. Review the manner in which you are seeking express consent to ensure you are prepared to comply with CASL after it comes into force. Retain an accurate list of the consents you receive, and scrub it to remove persons who have withdrawn their consent. Review your procedures for maintaining an accurate and current list of the consumers for whom you can establish implied consent through either an existing business relationship or an existing non-business relationship. Review the categories of electronic messages you distribute to identify those that fall within exceptions to the consent requirements. Such exceptions are available for messages that solely: complete, facilitate or confirm a commercial transaction, provide warranty or recall information, or provide a quote or estimate in response to a request. After CASL comes into force, ensure your electronic messages provide the prescribed information and contain a functional unsubscribe mechanism. Honor unsubscribe requests within 10 business days. Establish a CASL compliance policy to ensure that the classes of electronic messages you send are in compliance with CASL. A defense is available to persons who can establish they undertook due diligence to prevent violations. Implement policies to train any staff and third-party suppliers involved in the dissemination of electronic messages to comply with CASL and your compliance policy. Also, inform them of the consequences for failing to comply. In obtaining marketing lists from thirdparty providers, review the contracts to ensure they contain a representation and warranty that the list was assembled in compliance with CASL and that the provider will maintain the list in compliance with all CASL requirements including withdrawals of consent. If you outsource electronic marketing to a third party, review and update your services contract to ensure it requires compliance with CASL. 3. Amendments to the Personal Information Protection and Electronic Documents Act In addition to creating new requirements for commercial electronic messages, CASL also amended the Personal Information and Electronic Documents Act (PIPEDA), which governs the collection, use and disclosure of personal information in the private sector in all Canadian jurisdictions with the exception of British Columbia, Alberta, and Québec. The amendments to PIPEDA came into force on April 1, 2011, and provide the Commissioner of Privacy with greater discretion when exercising her powers under PIPEDA. The Commissioner will now have the discretion not to investigate a complaint if it is deemed that the complainant ought to first exhaust another available grievance process or if the matter would be more reasonably dealt with under another Canadian law. Having decided to undertake an investigation, the Commissioner may discontinue it should she determine that there is not enough evidence to proceed, or if the matter is deemed to be trivial, frivolous, or vexatious. Proposed Amendments In September 2011, the federal government proposed further amendments to PIPEDA in Bill C-12, which, if passed into law, will alter the existing requirements under the Act in several important respects. First, Bill C-12 proposes to redefine Personal Information to remove the provision that business contact information is not personal information. In its place, a new exemption will be created that provides that the protections granted to personal information do not apply to business contact information when it is used solely for the purpose of communicating with an individual in relation to their employment, business or profession. This amendment appears to be intended to strengthen the protection available to business contact information,

5 ALM PA01:ALM MASTER.qxd 24/11/ :38 PM Page 5 G U I D E T O T H E L E A D I N G L A W Y E R S I N C A N A D A B 5 as it restricts the exemption to a prescribed class of uses rather than exempting such information from the application of PIPEDA altogether. Bill C-12 will also clarify the requirements that apply to obtaining consent to the use of personal information. As it currently exists, PIPEDA requires informed consent to the collection, use and disclosure of personal information. The validity of the consent will be interpreted in the light of the reasonable expectations of the individual from whom it is sought. It is this provision that Bill C-12 seeks to clarify, providing that consent will be valid only if it is reasonable to expect that the individual providing it understands the nature, purpose and consequences of the collection, use or disclosure of personal information to which they are consenting. Overall, this amendment would provide statutory guidance on what persons seeking consent to use personal information should disclose to the individual. An important new exception to the requirement for informed consent to the use and disclosure of personal information will expressly permit companies entering or contemplating business transactions to use or disclose personal information to decide whether to enter the transaction, or to complete it. Business transactions will include the sale of a business, mergers, amalgamations, providing financing to an organization and leasing an organization s assets. In using or disclosing personal information in the course of a transaction, an organization will be required to protect the information by means appropriate to its sensitivity, and use and disclose it only for purposes related to the transaction. If the transaction does not proceed, the personal information must be returned to the party that disclosed it, or destroyed. After an organization has completed such a business transaction, it would only be permitted to use and disclose personal information under its control for the purposes for which the information was permitted to be used before the transaction, provided that the information is necessary for the business activity that was the objective of the transaction, and provided that one of the parties to the transaction notifies the individual to whom the information pertains. Bill C-12 will also create important new reporting obligations on organizations subject to PIPEDA, requiring them to report material breaches of security safeguards for personal information to the Commissioner of Privacy. Such breaches will include the loss of, unauthorized access to, or unauthorized disclosure of, personal information. In deciding whether to report such a breach, organizations will be obligated to consider the sensitivity of the information implicated, the number of individuals affected, and whether the breach is indicative of a systematic problem. Currently, only Alberta has an analogous requirement, although Canada s other Privacy Commissioners accept voluntary reports of breaches of security where an organization is seeking guidance on compliance. Bill C-12 goes beyond the requirements in the Alberta Personal Information Protection Act; however, requiring organizations to notify individuals of security breaches if they may lead to significant harm to the individual. In contrast, Alberta s law empowers the Commissioner to order the organization to notify an individual where the Commissioner deems it necessary. Individuals would be permitted to file a complaint with the Commissioner if these procedures were not followed. The future progress of Bill C-12, and in particular, its provisions relating to business transactions and mandatory reporting requirements, will be of interest to all organizations that collect and use personal information in Canada in the course of their commercial activities. 4. Québec Proposes New Amendments to the Consumer Protection Act On June 8th, 2011, the Québec government tabled the third phase of its efforts to modernize the province s Consumer Protection Act. Bill 24, an Act mainly to combat consumer debt overload and modernize consumer credit card rules, is intended to reduce the level of indebtedness amongst Québec consumers, improve access to information on consumer credit and strengthen the protection of vulnerable consumers. Under the proposed Bill 24, consumers will benefit from the following new rights and advantages: The period during which consumers may unilaterally cancel certain credit contracts will be extended from two to seven days; Consumers will be able to withdraw from accessory contracts entered into at the same time as a credit contract at any time, provided that such contracts were not required as a condition of the credit contract; Consumers not already in default will be able to invoke force majeure if they are unable to meet the terms of a credit contract. Consumers may also apply to the court to modify the terms and conditions of payment and may even be granted the right to return the purchased goods; and Additional amendments relating to direct sales contracts, distance contracts, instalment sale contracts, and permits are also proposed, all of which are intended to benefit consumers. Bill 24 will also impose new duties on creditors, while strengthening some of their existing obligations: Businesses and financial institutions will be required to verify a consumer s capacity to repay before entering into any credit agreement or increasing the

6 ALM PA01:ALM MASTER.qxd 24/11/ :38 PM Page 6 B L E X P E R T / A M E R I C A N L A W Y E R amount of credit extended to the consumer under an existing credit agreement; Creditors will no longer be permitted to grant a higher credit limit than that requested by a consumer, or distribute pre-authorized credit cards through the mail; Any unilateral increase of a consumer s credit limit cannot be enforced against the consumer, nor will the consumer be required to repay any amounts charged by reason of that increase; Any false or misleading representation to consumers that credit may improve their financial situation will be prohibited; Creditors will no longer be permitted to offer a product or service in order to encourage consumers to apply for a credit card; and The rules applicable to long term lease contracts will also be modified with respect to the applicable amendment procedures, the content of the contract, the applicable cancelation periods, and the rights of repossession and subleasing. Other proposed amendments are of broad application to all advertisers. Bill 24 proposes to ban the use of a picture in an advertisement that does not accurately depict the goods advertised. This change would significantly affect automobile advertisers, for example, as it would prohibit showing a model with a higher trim level than the price point advertised. The proposed changes under Bill 24 are significant and far-reaching in their application. Corporations, retail lenders and financial institutions engaged in consumer-directed businesses should take note of the latest proposed changes to the Consumer Protection Act and consult legal counsel in order to fully ascertain the scope of the proposed amendments and their consequences. 5. The Competition Bureau Takes Aggressive Action on Fine Print Advertising and Marketing Claims In 2011, the Competition Bureau took aggressive action against the misleading use of fine print in advertising by imposing a C$10 million monetary penalty against a telecommunications company for misleading advertising. The Bureau s decision marks the first time that the maximum administrative monetary penalty allowed for corporations under the Competition Act was imposed, and makes abundantly clear that the Bureau is prepared to severely punish advertisers it deems to be using fine print and disclaimers in a misleading manner in advertising. In the incident leading to the record penalty, the advertiser was found to be charging higher prices than those it advertised and hiding additional mandatory fees in the fine print disclosed at the bottom of its advertisements. The use of disclaimers or fine print will not provide protection in cases where the information in the disclaimer actually contradicts the overall impression conveyed by the ad, particularly where such representations relate to price. Consumers must be able to purchase advertised products or services at their advertised prices, without additional, mandatory, hidden fees. The Competition Bureau has long stressed the importance of transparency and truth in advertising and has denounced the use of fine print in advertising to mask additional fees. Earlier in the year, the Bureau brought charges against another telecommuni - cations company over its claim that its clients experienced fewer dropped calls than users of other wireless carriers. In this case the Bureau is again seeking the maximum monetary penalty of C$10 million. It appears that the Bureau is now willing to undertake steps to actively curtail deceptive advertising practices using the increased monetary penalties available under the Competition Act. 6. New Copyright Legislation on the Horizon On September 29, 2011, the federal government reintroduced the Copyright Modernization Act (CMA) which is intended to address numerous issues arising from the development of digital and Internet technology since the Copyright Act was last substantially revised in The CMA has a very large scope and, if enacted, its full impact on Canadian copyright will take time, and likely judicial decisions, to determine. New Rights for Creators and for Users If adopted, the CMA will create new rights for both creators and users of copyrighted materials. For users, the CMA expands the existing exception of fair dealing to include situations when copyright material is used for the purpose of parody, satire or for education purposes. Additionally, it would be permissible to use an existing publicly available work to create a new work, provided this is done solely for non-commercial purposes, the source of the original work is credited, and the creation of the new work does not have a substantial adverse effect on the original work. In addition to the new fair dealing exemption, the CMA will provide a number of rights and exemptions to educational institutions and educators. Exemptions permitting educational institutions to reproduce, display or perform works in the classroom would be rendered more technologically neutral by removing links to specific technologies. Further, a number of proposed amendments would facilitate the use of new digital technologies in the classroom. These changes will encourage the delivery of both lessons and course materials over the Internet, and will permit the use of materials obtained from the Internet for educational purposes, provided the material was posted by the copyright

7 ALM PA01:ALM MASTER.qxd 24/11/ :38 PM Page 7 G U I D E T O T H E L E A D I N G L A W Y E R S I N C A N A D A B 7 owner without the expectation of compensation and is not protected by technological protection measures. The CMA would also provide legal sanction to several practices that have become widespread with the advent of digital technology (or for that matter, video cassette recorders). First, if the law is adopted, it will permit the reproduction of a work for private purposes where the initial copy of the work is a lawful copy, not merely rented or borrowed, provided the individual making the copy does not circumvent a technological protection measure to create it. This right would permit an individual to make backup copies of materials they have purchased legally, but would not permit them to distribute those copies. This provision will permit individuals to copy the work onto any medium or device they own, (for example, would permit copying a compact disc onto a computer or digital music player). Additionally, the CMA includes a provision that will permit time shifting in the case of recordings made for the purpose of viewing or listening to a program at a later time, provided the recording is kept no longer than is reasonably necessary, and the individual received the program legally. This provision will not apply to on-demand programs. As for creators, performers would benefit from expanded exclusive rights in their performances when embodied in sound recordings. This expansion would include a broader right of reproduction, making it available through digital distribution and the right to sell tangible copies of such sound recordings. Further, the CMA would give performers moral rights in their performances, similar to those enjoyed by other creators. Additional proposed changes would eliminate the differential treatment of photographs under copyright law as compared to other works, by providing that the copyright in a photograph would be first owned by the author or the author s employer, as is the case for other works. A person who commissions a photograph would be permitted to make a personal or non-commercial use of it, unless they enter a contract that provides otherwise. New Penalties and Enforcement Mechanisms The CMA will prohibit the circumvention of the technological protection measures used by rights-holders to secure and control their digital content. It will also prohibit providing circumvention services to others, or dealing in technology designed to circumvent protection measures. Interestingly, these prohibitions appear to apply even when a user circumvents a technological protection measure for an otherwise permitted purpose, such as fair dealing, an aspect of the CMA that had attracted some criticism when it was previously introduced. The CMA will also make it an infringement of copyright for anyone to provide a service over the Internet or another digital network if they know or should know that the service is designed primarily to enable acts of copyright infringement. Whether infringement is established under this provision will be based on factors including how the service is promoted, the provider s knowledge of past infringements relating to the service, whether the service has significant uses other than copyright infringement, and whether the service would be economically viable if it were not used to enable acts of infringement. While these amendments strengthen the ability of copyright owners to protect their works, non-commercial infringers of copyright would face considerably less exposure to statutory damages if the CMA were to pass. The range of possible statutory damages would be reduced to awards of between C$100 and C$5,000 per infringer and cover all past infringements. The court would also be permitted to consider factors such as the hardship of the award to a noncommercial infringer and whether the infringement impacted the plaintiff. Infringement for commercial purposes would remain subject to potential statutory damage awards of between C$500 and C$20,000. Finally, the CMA will limit the liability of Internet Service Providers (ISPs) and operators of Internet search engines for copyright infringement carried out by their subscribers, as they act as mere conduits for material over the Internet. The CMA would permit copyright owners to send a notice of claimed infringement to an ISP in a prescribed form. On receiving such a notice, the ISP would be obligated to forward it without delay to the alleged infringer identified in the notice, and to retain records that would help determine the identity of the alleged infringer for a period of six months to one year. ISPs would only be required to release the identity of the alleged infringer if ordered to do so by court order. At the time of writing, the CMA was in its first reading. Legislative developments can be expected in the coming months as the legislation proceeds through Parliament. Conclusion The last year has been full of changes and challenges for advertisers and their lawyers in Canada. While most basic principles governing advertising law are similar in Canada and the US, there are many important differences; and Québec, with its Civil Code and French language rules, adds layers that must be considered when embarking on a North American advertising campaign.

8 B L E X P E R T / A M E R I C A N L A W Y E R Brian Fraser, Gowling Lafleur Henderson LLP Tel: (416) Fax: (416) brian.fraser@gowlings.com B rian Fraser has been practicing in the field of advertising and marketing law for more than 25 years. Brian has been recognized by The Canadian Legal Lexpert Directory 2011 as a practitioner most frequently recommended in Law and was also recognized by The 2011 Lexpert /American Lawyer Guide to the Leading 500 Lawyers in Canada. Additionally, Brian has been consistently recognized by The Best Lawyers in Canada as a leading lawyer in advertising and marketing law and was named Lawyer of the Year for Brian advises on all aspects of advertising and marketing law, including ad copy review for all media, promotional contests, packaging and labeling requirements, comparative advertising and claims support. His practice also includes representing clients in trade dispute proceedings administered by Advertising Standards Canada. The clients he advises include advertising and promotion agencies, as well as some of Canada s leading telecommunications, retail and packaged goods companies. He is co-author of a comprehensive reference service for lawyers and other advertising professionals published by Carswell. He is a frequent speaker at industry conferences and has published numerous articles and papers on advertising and marketing law issues. Susan Vogt, Gowling Lafleur Henderson LLP Tel: (416) Fax: (416) susan.vogt@gowlings.com Susan Vogt is a partner in Gowlings Toronto office and co-leader of the firm s Advertising, Marketing and Regulatory Affairs National Practice Group. She practices exclusively in the area of intellectual property law with a focus on advertising and marketing law, and trade-mark prosecution. Susan s advertising law practice involves national and international manufacturing companies and advertising agencies with an emphasis on the pharmaceutical, packaged goods and automotive sectors. She specializes in trademark and copyright registration and licensing, co-promotion and celebrity endorsement agreements, contest and promotion law, the review of broadcast and print ads as well as packaging, labeling and point of sale materials, food and drug regulatory issues and misleading advertising litigation. Susan is recognized in The Canadian Legal Lexpert Directory, , consistently recommended for Law; as well as The Best Lawyers in Canada, , as a leading lawyer in advertising law. In addition, Susan is recognized by Martindale-Hubbell. Susan is a co-author of the leading LexisNexis text Advertising and Marketing Law in Canada. The third edition was published in Christopher Oates, Gowling Lafleur Henderson LLP Tel: (416) Fax: (416) chris.oates@gowlings.com Christopher Oates is an associate in Gowlings Toronto office, practicing in the area of intellectual property with a focus on advertising, marketing and regulatory law. His practice focuses on direct to consumer marketing, including advertising copy review, contest design and review, talent agreements, and regulatory law pertaining to food, cosmetic and drug products. Chris practice also includes advising clients on privacy law, including drafting and reviewing privacy policies and advising on privacy in the context of electronic commerce.