Election advertising.
Advertising Standards Canada, The Canadian Code of Advertising Standards: “Includes ‘advertising’ about any matter before the electorate for a referendum, ‘government advertising’ and ‘political advertising,’ any of which advertising is communicated to the public within a time-frame that starts the day after a vote is called and ends the day after the vote is held. In this definition, a ‘vote’ is deemed to have been called when the applicable writ is issued.”
Electronic message (Canadian anti-spam law (CASL)).
In general, Canada’s federal anti-spam legislation (CASL) requires that senders have express or implied consent (as defined by the legislation) to send unsolicited commercial electronic messages (CEMs) to Canadians, unless an exemption under CASL applies. With respect to “electronic messages”, CASL is technologically neutral. It defines electronic messages as those sent by any means of telecommunication, including text, sound, voice or image messages. As such, CASL can apply to a variety of types of electronic media, including e-mail, text messaging, instant messaging and direct messages (e.g., via social media platforms).
For more information about CASL, see: CASL (Anti-spam Law), CASL Compliance, CASL Compliance Errors, CASL Compliance Tips and Contests and CASL.
For information about the CASL compliance checklists and precedents that we offer for sale, see: CASL Compliance Checklists and Precedents.
“Equal dignity” / no purchase required entry option (Canadian contest law).
Most, but not all, promotional contests/sweepstakes in Canada must include a no purchase required entry option (i.e., an “alternative means of entry” or “AMOE”) for contest entrants to avoid the illegal lottery offences under section 206(1) of the federal Criminal Code. One such offence, under section 206(1)(f) of the Criminal Code, makes it illegal to require a purchase or other consideration to enter into a game of chance (or mixed chance and skill) where goods, wares or merchandise is awarded as a prize(s). As such, contest promoters in Canada commonly include some type of no purchase required entry option to enter into promotional contests. Contest sponsors have wide latitude to determine how entrants that do not purchase any product or service can enter into a contest, including offering free online entries, free paper ballots or the traditional requirement to handwrite and mail in a short essay (e.g., 50-100 words) on a topic specified by the sponsor for a free entry. There is, however, case law in Canada that has held that no purchase entrants must be treated substantially the same as entrants that purchase a product (i.e., substantially treated the same as entrants that purchase a product or service in order to enter the contest). This is commonly referred to as the “equal dignity” requirement for contest entries. For example, in one case, a contest promoter that offered more entry ballots to entrants that paid to enter in a contest to win a car than were offered to no purchase entrants was prosecuted and convicted for violating the Criminal Code. In that case, the court held that the purported no purchase required entry option was in fact a sham and that the promotion was an illegal lottery. In this regard, in general, private parties cannot operate lotteries in Canada unless they are charities and provincially licensed in the provinces in which they intend to operate the lottery. As such, while contest sponsors can make it somewhat more difficult for no purchase entrants to enter into a contest (e.g., by answering a short survey, mailing in an entry ballot or mailing in a handwritten essay with a stamp to enter), the risk increases the more difficult a contest sponsor makes it for no-purchase entrants to enter into a contest or if purchasers are given more entries than non-purchaser entrants.
For more information about Canadian contest/sweepstakes law, see: Contests, Contests and CASL, Contest Law FAQs, Contests and Social Media and Contest Law Tips.
For information about the Canadian contest/sweepstakes precedents (template rules) and checklists that we offer for sale, see: Canadian Contest Forms/Precedents.
Existing business relationship category of implied consent (Canadian anti-spam law (CASL)).
In general, Canada’s federal anti-spam legislation (CASL) requires that senders have express or implied consent (as defined by the legislation) to send unsolicited commercial electronic messages (CEMs) to Canadians, unless an exemption under CASL applies. CASL contains an “existing business relationship” category of implied consent. “Existing business relationships” include: (i) the purchase of products, goods, services or land within two years before a message is sent; (ii) the acceptance by the recipient of a business, investment or gaming opportunity within two years before a message is sent; and (iii) an inquiry by the recipient for products, goods, services, etc. within six months before a message is sent. For existing business relationships, however, a marketing list must be scrubbed on a rolling basis once the above dates have expired unless express consent has been obtained or another category of consent (or an exception) can be relied on. It is very important for electronic marketers to carefully review the requirements for express consent and each type of implied consent defined by the legislation.
For more information about CASL, see: CASL (Anti-spam Law), CASL Compliance, CASL Compliance Errors, CASL Compliance Tips and Contests and CASL.
For information about the CASL compliance checklists and precedents that we offer for sale, see: CASL Compliance Checklists and Precedents.
********************
SERVICES AND CONTACT
We are a Toronto based Canadian competition and advertising law firm that helps clients in Toronto, across Canada and the United States practically navigate Canada’s advertising and marketing laws and offers Canadian advertising/marketing law services in relation to print, online, new media, social media and e-mail marketing.
Our Canadian advertising/marketing law services include advice in relation to anti-spam legislation (CASL), Competition Bureau complaints, the general misleading advertising provisions of the federal Competition Act, Internet, new media and social media advertising and marketing, promotional contests (sweepstakes) and sales and promotions. We also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers, drip pricing, astroturfing and native advertising.
For more information about our services, see: services
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
