CANADA Law and Practice Contributed by: Martha Harrison, Nikiforos Latrou, Eugenia (Evie) Bouras and Marissa Caldwell, McCarthy Tétrault
Section 74.01 (1) of the Competition Act and entered into a consent agreement with the telecommunica - tions provider, which paid a CAD1.25 million penalty. The Code reinforces the foregoing by prohibiting dis - guised advertising techniques. Clause 2 of the Code requires that advertising be clearly distinguishable from editorial content, especially when the format could confuse consumers into thinking the content is independent or journalistic.
There are also common law torts that address this type of conduct – for instance, trade libel/injurious falsehood, negligent misrepresentation, or passing off. A claim can be brought in provincial court on the basis of one or more of these torts. The Trademarks Act also prohibits false or misleading statements that discredit a competitor’s business, goods or services or that misrepresent the quality, origin or performance of their goods or services. 4.4 Ambush Marketing There are no special rules in this jurisdiction related to ambush marketing. 5. Social/Digital Media 5.1 Special Rules Applicable to Social Media There are no specific rules that apply to social media advertising in Canada that go beyond the require - ments described in this chapter, which apply to all advertisements (including in social media and online). 5.2 Liability for Third-Party Content There is no liability for advertisers for the posting of third-party content. 5.3 Disclosure Requirements See 2.7 Disclosures . 5.4 Requirements for Use of Social Media Platforms This topic is not applicable; no special rules or regula - tions apply. 5.5 Influencer Campaigns and Online Reviews 5.5.1 Special Rules/Regulations on Influencer Campaigns Influencers must disclose their material connection to the brand. Please see 2.7 Disclosures for more details. 5.5.2 Advertiser Liability for Influencer Content The Competition Bureau’s position is that the advertis - er and the influencer share responsibility for influencer content, but ultimately the advertiser is responsible for ensuring that influencer advertising for its brand complies with applicable laws.
4. Comparative Advertising and Ambush Marketing 4.1 Specific Rules or Restrictions
Comparative advertising must comply with various laws, including the Trademarks Act, the Copyright Act, the Competition Act and provincial consumer protec - tion legislation. There are also common law torts that address conduct where a comparative advertisement causes actual damage to the business of a competi - tor. As a result, there is inherent risk in comparative advertising in Canada, and this should be carefully assessed by legal counsel. 4.2 Competitor Copyrights and Trade Marks The use of competitors’ copyrights and trade marks remains a challenging area under Canadian law, as the Trademarks Act does not permit nominative or refer - ential use of a competitor’s trade marks or the use of another’s trade mark for the purposes of making com - parative claims. There are very few court decisions that address these issues, and the historical deci - sions that carry the most weight in this area are both restrictive and divisive. As a result, any comparative advertising using trade marks must be approached with caution, and should involve a thorough legal risk assessment. 4.3 Challenging Comparative Claims Made by Competitors The Competition Act allows for private access to the Competition Tribunal (with leave) to address conduct prohibited by the civil misleading advertising provi - sions of the Competition Act, which include “green - washing” and “drip pricing”.
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