Marketing and Sales Law 3

Contests, lotteries, games of chance or skill and games of mixed changes and skill ar prohibited unless:

• Fair disclosure of the number of value of prizes is made, regional distribution of prizes, and of the odds of winning
• Prizes are distributed without delay
• Selection of participants or distribution of prizes is made on the basis of skill or on a random basis in any area to which prizes have been allocated

Contests operated through telemarketing are prohibited if:

• No prize delivery without participant pays some amount
• No adequate disclosure is made regarding the number and value of prizes, odds of winning and regional distribution of prizes
  • Bust be made during the phone call

It is a crimt to send a false notification of winning a prize

• Elements of the offence:
  • A document or notice is sent to a person
  • The notice gives the impression that the recipient has:
    • won a prize or benefit
    • will win a prize
    • will win a prize if they do a certain act
  • Asked to give money in some way incur a cost (incl stamp)

Contests, lotteries, games of chance or skill and games of mixed changes and skill ar prohibited unless:

• Fair disclosure of the number of value of prizes is made, regional distribution of prizes, and of the odds of winning
• Prizes are distributed without delay
• Selection of participants or distribution of prizes is made on the basis of skill or on a random basis in any area to which prizes have been allocated

Contests operated through telemarketing are prohibited if:

• No prize delivery without participant pays some amount
• No adequate disclosure is made regarding the number and value of prizes, odds of winning and regional distribution of prizes
  • Bust be made during the phone call

It is a crimt to send a false notification of winning a prize

• Elements of the offence:
  • A document or notice is sent to a person
  • The notice gives the impression that the recipient has:
    • won a prize or benefit
    • will win a prize
    • will win a prize if they do a certain act
  • Asked to give money in some way incur a cost (incl stamp)

1. Charter protection
2. Criminal Code
3. BC Privacy Act
4. Common Law Privacy Protection
5. Government-Specific Legislation
6. Personal Information Protection and Electronic Documents Act
7. Personal Information Protection Act

Against fraud

• Makes it an offence to fraudulently impersonate another persone if the intention is
  • to gain advantage for themselves or another person
  • to cause disadvantage to the person bein personated or another person
  • to obtain any property or an interest in any property
  • to avoid arrest or prosecution or to obstruct justice

Against identity theft

• makes it an offence to knowingly obtain or pessess annother person's identity information
• Creates a resaonable inference (rückschluss) that the information is intended to be used to commit an indictable offence that includes fraud, deceit or falsehood.

Against fraud

• Makes it an offence to fraudulently impersonate another persone if the intention is
  • to gain advantage for themselves or another person
  • to cause disadvantage to the person bein personated or another person
  • to obtain any property or an interest in any property
  • to avoid arrest or prosecution or to obstruct justice

Against identity theft

• makes it an offence to knowingly obtain or pessess annother person's identity information
• Creates a resaonable inference (rückschluss) that the information is intended to be used to commit an indictable offence that includes fraud, deceit or falsehood.

Provides general right to privacy:

• Person whose right to privacy has been willfully violated can sue in tort
• The nature and degree of privacy to which a person is entitled is that which is reasonable in the circumstances, giving due regard to the lawful interests of others
• Expceptions 
  • Consent (Zustimmung)  obtained
  • Alleged (angebliche) privacy breach was incidental (zufällig) to the exercise of a lawful right of defence of person or property
  • Publication made in the public interest, or was fair comment on a matter of public interest

Canada begun to recognize some sub-categories of invasion of privacy 

• Intrusion upon Seclusion
  • Defendant intentionally invades the plaintiff's private affairs without justification in a way that a reasonable person would find highly offensive
  • "One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person."
• Public Disclosure of Private Facts
  • if the disclosure is objective and offensive to a reasonable person

• Applies to commercial organizations that collect, use or disloce personal information in provinces that don't have substantially similar legislation
• Applies where personal information is collected, used or disclosed by an orgnaization for comercial purposes
  • Organization like, associations, partnerships, persons, trade unions
• Applies even where the party collecting is outside Canada
• Personal Information defined as information about an identifiable individual
  • personal information that could be combined with other information to identify an individual
• Exclusions: 
  • Named, jobtitle, business address of an emplyee of an organization
  • Work product information
  • use of information for journalistic, artistic or literary purposes
  • personal or domestic use

• The organization must make reasonable efforts to inform individual of way/s in which the information will be used
  • Consent must be meaningful
  • Opt-out consent can be problematic (ausdrücklich sagen dass man nicht will- you may be presented with a checkbox and asked to uncheck the box (opt-out)
• Cannot tie consent to a condition of providing the product or service
• Individual can withdraw consent (Zustimmung zurückziehen)
• Exceptions:
  • The collection is clearly in the interests of the individual 
  • Information collection is reasonably related to a legal investigation

Is to be limited to what is reasonably necessary for the identified purposes

• If the information is to be used for some new purpose, the individual must provide new consent
• Information is to be destroyed when that purpose is fulfilled (Tandemfahrt)

Must be conducted in a fair and lawful manner

• Consent cannot be used to allow patently unreasonable uses of information
• Disclosure to a third party in order to fulfill the purpose the individual originally consented to is acceptable

Individuals have the right to access their personal information and to correct it

No requirement for organizations to notify individuals when breaches of pricacy obligations occur

• But, the organization must immediately report to the Commissioner
  • Complainant must register complaint within one year of alleged violation
• Commissioner serves ombudspersons role
  • Largely seeks to educate organizations as to how to comply with act (can't issue orders)
  • Commissioner can refer matters to the Federal Court of Appeal

• BC private-sector privacy legislation
• Essentially echoes PIPEDA
  • Has specific approach to collection, use and disclosure of employee information
  • Covers not only commercial activities, but non-commercial as well
  • Allows for povincial Privacy Commissioner to make binding orders
  • No requirement for organizations to notify individuals when breaches of privacy obligations occur

• Came into force July 2014
• Applies to Commercial Electronic Messages (CEM) sent to, from or within Canada
  • Defined to go to messages sent, at least in part, regarding goods, services, business
  • Applies to email, text messages, social media messages...

CEM must:

• Identify the sender
• Include contact information for the sender
• Ask for consent to send the CEM

Consent (Zustimmung) must be obtained to send CEMs to the user

• Express consent doesn't expire, but can be withdrawn
• Pre-selected check-boxes CANNOT be used
• Can be written or oral

Can be implied (unausgesprochen enthalten)

• Where the parties are in an existing business or non-business relationship
• Within six months of an inquiry or application regarding a potential business relationship
• Where recipient had published their contact information
• Where recipient has given sender their contact information.

Content of CEM has to make clear that consent can be withdrawn

• Include unsubscribe mechanism, which has to:
  • be 'no cost' and 'no effort'
  • Allow for complete unsubscribe, but can also allow for partial unsubscribe
  • Use the same means by which the original message was sent
  • Be effective within 10 business days

Need for consent (zustimmung) to send CEM, and content requirements , don't apply:

• To messages sent in the context of personal or family relationships
• Where the recipient requests the message
• Where messages are sent within the relevant organization
• To foreign entities who sent the message with no reasonable expectation the message would be received in Canada
• To registered charities that send messages where the primary purpose is to raise funds

Need for consent to send CEM doesn't apply where the CEM (Content requirements DO apply):

• Is a quote or estimate sought by the recipient
• Is confirming or facilitating a transaction with the recipient
• Provides warranty or safety information to a consumer
• Provides information regarding an existing subscription or membership
• Provides information related to the employment relationship
• Is an initial contact following up on a referral

CASL (Canada’s Anti-Spam Legislation ) is overseen and enforced by CRTC (Canadian Radio-television and Telecommunications) 

• But, Competition Bureau and privacy commissioner of Canada are involved as well
• Up to 1 mio fine for individuals and 10mio for organizations. Directors and officers of companies can be personally liable

Private right of action to be allowed as well July 2017

• Three year limitation period
• 200 per CEM sent up to 1 mio per day
  • This is statutory damages - so, on top of compensatory (ersatz) damages

• Additional disclosure prior to consent is required if the software will:
  • Collect personal information
  • Change settings/preferences
  • Cause the computer system to communicate with another computer system or device
• Consent isn't required regarding
  • Installing upgrades to software if consent was obtained to install the original software
  • Use of cookies
  • Installations done pursuant to a court order