CANADA Law and Practice Contributed by: Martha Harrison, Nikiforos Latrou, Eugenia (Evie) Bouras and Marissa Caldwell, McCarthy Tétrault
6.2 Telemarketing The making of unsolicited telephone calls for mar - keting purposes are regulated under the Unsolicited Telecommunications Rules (UTRs). The UTRs apply to unsolicited communications to individuals, and certain parts apply to unsolicited communications to companies. All telemarketers that make unsolicited calls must comply with the UTRs, including adhering to the National Do Not Call List (NDNCL), a list which an individual may register for in order to automatically be opted-out of receiving unsolicited telecommunica - tions. Under the UTRs, an organisation must remove an individual from its call list upon request, and organi - sations must regularly update their call lists to exclude individuals who have registered for the NDNCL. 6.3 Text Messaging See 6.1 Email Marketing . 6.4 Targeted/Interest-Based Advertising As amended in 2023, Québec’s private sector pri - vacy law created new obligations for businesses that collect personal information using technology that includes functions allowing the person to be “identi - fied, located or profiled”. This is likely to capture some behavioural advertising practices. It defines “profiling” as “collecting or using personal information to assess certain characteristics of a natural person, in particu - lar for the purpose of analyzing that person’s work performance, economic situation, health, personal preferences, interests or behaviour”. Businesses that use such technology must first inform individuals of the following: • the use of the technology; and • the means available to activate the functions that allow a person to be identified, located or profiled (as all such functions must be defaulted to “off” pursuant to the law’s “privacy by design” require - ments). 6.5 Marketing to Children Generally speaking, personal information should not be collected from children under the age of 13, as they are unable to provide valid consent. Canadian privacy regulators encourage organisations to avoid the col - lection of personal information wherever possible, and, where it is necessary, to obtain parental consent.
5.5.3 Consumer Reviews Advertisers can be held liable if their use of consumer reviews is deceptive in nature. For example, offering discounts, coupons or free merchandise in exchange for reviews – without clearly disclosing that incentive – creates a material connection that must be made transparent to consumers. The general impression test under the Competition Act applies to reviews just as it does to other advertising claims. This includes practices such as using reviews from unrelated prod - ucts to promote a different one, deploying chatbots to generate synthetic reviews, or purchasing positive or negative reviews to manipulate consumer perception. Although there is no explicit duty under law to moni - tor reviews, it is recommended to do so to avoid any challenge that the reviews are false or misleading, since consumer reviews can influence the purchas - ing decision of other similar consumers. This is par - ticularly the case when advertisers selectively publish only favourable feedback or suppress negative com - mentary. These actions can distort the authenticity of consumer sentiment and violate the principles of truth in advertising. Canada’s Anti-Spam Legislation regulates the send - ing of commercial electronic messages (CEMs) to and from computers and mobile devices located in Can - ada. CEMs include emails and text messages. Opt- in consent, express or implied, is required before an organisation can send a CEM, although there are cer - tain exceptions to this requirement for things such as existing business relationships. Form and substance requirements are applicable to the means by which consent is obtained and the CEM itself. All CEMs must include an unsubscribe mechanism. 6. Privacy and Advertising 6.1 Email Marketing Canada’s Anti-Spam Legislation is considered one of the strictest anti-spam laws in the world, and viola - tions can result in compliance orders and/or monetary penalties of up to CAD10 million.
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