How to avoid misleading disclosures in online advertising

March 13th, 2013 by Barry Sookman No comments »

Want to avoid making misleading disclosures in online advertising? Then the FTC’s new staff guidance document, .com Disclosures, How to Make effective Disclosures in Digital Advertising,  is a must read. It provides information businesses should consider as they develop ads for online media to ensure that they comply with US law.

The overview summarizes the general principles as follows:

  1. The same consumer protection laws that apply to commercial activities in other media apply online, including activities in the mobile marketplace. The FTC Act’s prohibition on “unfair or deceptive acts or practices” encompasses online advertising, marketing, and sales. In addition, many Commission rules and guides are not limited to any particular medium used to disseminate claims or advertising, and therefore, apply to the wide spectrum of online activities.

Internet retransmission of broadcasts a communication to the public, rules the CJEU

March 8th, 2013 by Barry Sookman No comments »

The European Court of Justice ruled yesterday that retransmitting broadcasts over the internet infringes the communication to the public right, if done without authorization. The case involved TV Catchup Limited which operated an internet based live streaming service of broadcast television programmes.

The UK High Court in ITV Broadcasting Ltd & Ors v TV Catchup Ltd [2011] EWHC 1874 (Pat) (18 July 2011) referred the case to the EU Court of Justice (the CJEU). The case involved answering two questions. First, whether grabbing the over the air broadcasts and retransmitting them over the Internet was a communication. Secondly, whether the transmissions were “to the public”. The court in Case C‑607/11 found both requirements were met.

The Combating Counterfeit Products Act

March 4th, 2013 by Barry Sookman No comments »

Last week, the Government introduced Bill C-56, Combating Counterfeit Products Act. It has two main objectives. First, to protect public safety and health by enacting legislation specifically to target commercial scale trafficking in counterfeit products. Second, to make technical amendments to the Trade-marks Act such as to permit registration of non-traditional trade-marks like sounds, and to improve registration procedures. The Government backgrounder and related FAQs, and other information is available at Industry Canada’s website.

Canada’s anti-spam law (CASL), too much of a good thing

March 1st, 2013 by Barry Sookman 4 comments »

Here is a longer version of my article published in the Financial Post this morning titled Delete this anti-spam law.

Canadians don’t like spam. They also don’t like malware. But the more they learn about Canada’s new, but not yet in force, anti-spam law commonly referred to as CASL (for “Canada’s Anti-spam Legislation”), they don’t like it much either. The root of the problem is that the law starts with the assumption that all Canadians are spammers and purveyors of malware and works back from there by banning legitimate and illegitimate activities with vague rules and incomplete exceptions.

Charities, non-profits and CASL

February 21st, 2013 by Barry Sookman No comments »

Some people mistakenly think that only businesses find Canada’s anti-spam law (CASL) to be burdensome, unworkable, and counter-productive. However, this view appears to be shared by every sector that is faced with compliance including charities and not for profit organizations, universities, colleges and hospitals.

Industry Canada has now received submissions to the consultation from organizations representing the entire charitable and non-profit sectors. The submissions include calls by each of the Ontario Nonprofit Network, Imagine Canada, and the Association of Universities and Colleges of Canada (AUCC) for a complete exemption from CASL. They, along with Canadian Bar Association, provide example after example of how CASL’s “ban all” approach to regulating electronic messages with any direct or indirect commercial content or links will have very deleterious implications, in this case for charities and not for profit organizations.

Google liability for defamation on Tamiz v Google

February 20th, 2013 by Barry Sookman No comments »

Last week the UK Court of Appeal in Tamiz v Google Inc [2013] EWCA Civ 68 (14 February 2013) ruled that Google, as the host of the site, had potential liability for defamation by failing to take down or disable access to defamatory content once it receives notice that it is hosting such content.

CASL: the submissions to Industry Canada on the draft regulations

February 19th, 2013 by Barry Sookman 1 comment »

The period for filing submissions to the Industry Canada consultation on the draft Electronic Commerce Protection Regulations has closed.

Industry Canada received numerous submissions from organizations representing all sectors of the Canadian public including charities, not-for profit and educational institutions, private individuals, small, medium and large businesses, retailers, publishers, financial institutions, technology and telecommunications companies, vehicle manufacturers and others. The organizations that filed submissions include the Ontario Nonprofit Network, Imagine Canada, the AUCC, AccessPrivacy, Canadian Bar Association, Magazines Canada, The Canadian Marketing Association, Interactive Advertising Bureau of Canada, a Coalition of Business and Technology Associations, The Canadian Chamber of Commerce, Retail Council of Canada, the Canadian Federation of Independent Business, Information Technology Association of Canada, and CWTA . Phil Palmer, a specialist practitioner at Industry Canada Legal Services who oversaw the development of Canada’s Anti-Spam Legislation and the development of its regulations also filed a submission. I also personally filed a submission.

Has the CRTC compromised its judicial independence on CASL?

February 18th, 2013 by Barry Sookman No comments »

Philip Palmer, a former specialist practitioner at Industry Canada Legal Services and the person who oversaw the development of CASL and its regulations, just published an important blog post, CRTC CASL Guidelines: Do they Compromise Adjudicative Independence? In the post, he questions whether the CRTC should be publishing enforcement guidelines in the name of the Commission in view of the important adjudicative role that the Commission also has in enforcing CASL.

In part, he says the following:

Supreme Court hears oral argument in Cinar/Robinson copyright cases (Updated)

February 13th, 2013 by Barry Sookman No comments »

Earlier today, the Supreme Court heard oral argument in four copyright cases arising from the decision of the Quebec Court of Appeal in the France Animation v Robinson, 2011 QCCA 1361 case. The main issue in the appeal was whether sketches and characters of the proposed TV series Robinson curiosity were infringed by the series Robinson sucro. The trial judge found infringement and the Court of Appeal upheld the judgment, in part. The webcast from the argument is being archived and will be available here.

Google wins sponsored links case in Australia

February 6th, 2013 by Barry Sookman No comments »

Google won an important case earlier today in the High Court of Australia  In Google Inc v Australian Competition and Consumer Commission [2013] HCA 1 (6 February 2013), Australia’s highest court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia which had found that Google had engaged in misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 by publishing and displaying sponsored links. The High Court ruled that Google did not create the sponsored links that it published or displayed. Rather, the advertiser was considered to be the publisher of the sponsored links.