Anti-spam bill to change mobile marketing practices, experts say

TORONTO—Canada’s new anti-spam legislation, which will require companies to pay close attention to securing consent from customers before sending commercial messages, is poised to push firms to tread lightly when advertising via mobile, experts said at a conference last week. The federal government's anti-spam legislation, which received royal assent in December, is expected to come into force within six-to-eight months. Several speakers at a conference on advertising and marketing law, hosted by the Canadian Institute in Toronto, noted that the anti-spam act is aimed at deterring deceptive forms of spam and disclosing the senders of digital marketing information. And this covers all sorts of mobile marketing. The legislation also involves an amendment to the Competition Act that will include a prohibition on the sending of electronic messages, including text messages, of a false or misleading nature. A survey by JiWire, released in May of last year and which polled 2,030 mobile customers, indicated that 76 per cent of respondents preferred receiving free apps that feature advertising rather than paying for them. The survey also said that 53 per cent of respondents were willing to share their locations to receive more relevant advertising on their mobile devices. With more than five billion mobile subscriptions across the globe, the mobile industry is a trillion dollar economy, according to the Mobile Marketing Association in the United States. At the conference Thursday and Friday last week, Solange L. Brard, senior counsel with Bell Canada/BCI Inc., said the mobile device is an effective tool to connect with the consumer. "As we have seen recently, mobile marketing has really exploded," Brard said, noting that it can take several forms, including location-based marketing. "It is probably because we have all become very attached to our mobile devices, and they have become very personal. The number of people with mobile devices now outnumbers the number of people with non-mobile devices. It creates an enormous opportunity for companies to market to what seems like a limitless number of clients." Laura Weinrib, an associate in the intellectual property group at Blakes, Cassels & Graydon LLP in Toronto, said that right now, there is no exclusive law in the advertising world covering disclosure for marketing on mobile devices. "We are dealing with the same guidelines , with some exceptions," Weinrib said. The challenge for advertisers will be to get out their advertising messages without being deceptive or ambiguous. "One of the main issues in terms of making sure you are not being misleading is making sure you meet your disclosure requirements," Weinrib said. "That is harder to do in a mobile context because there is a question about how much you can disclose in 140 or 160 characters. A lot of advertising in mobile devices will be limited by the size of the device." In an interview, Weinrib said "there is no clear requirement on how you go about getting consent . The marketer will have to set out who they are and how you can unsubscribe from getting the information." Coming regulations to support the government’s anti-spam legislation will outline specifics on consent for receiving spam; classes of spam and how they are distributed; details on the collection of personal information and the function of malware; and definitions for terms in the legislation. Liisa Thomas, an attorney at law and partner with Winston & Strawn LLP in Chicago, Ill., who provides privacy law counselling to major consumer brands and advertising agencies, said that while there is an American counterpart to Canada's Competition Act, there is also state-level legislation in the U.S. that provides for private rights of action and makes class action suits a potential threat to marketers who send marketing messages via mobile technologies to consumers without obtaining their consent. In an interview, Thomas said the United States appears to be in a unique situation in that class action suits have become a danger to companies due to state-level laws. "Our laws allow it to occur," she said. "I would have to presume that the laws in other jurisdictions are not as easy." An article in The Wall Street Journal on Dec. 18, 2010, titled "Your Apps Are Watching You," suggested that marketers may be on the hook legally even in cases where consumers have opted in and given permission to companies to access their personal data through applications on their mobile devices. Following the publication of the article, a class-action lawsuit was filed on Dec. 23, 2010 in California against Apple Inc., Pandora Media Inc., and Gogii Inc. The plaintiffs allege some apps they downloaded to their iPhones and iPads have transmitted their personal information to advertising networks without their consent. Discussion at the conference also turned to truth in advertising. Marketers need to make sure that, if they are running ads, online or in traditional media, that their claims can be backed up, Catherine Bate, a Toronto-based associate with Heenan Blaikie LLP, said, describing recent telecom legal wars over advertising claims. A New Brunswick court recently awarded Bell Aliant a court injunction that prevents Rogers Communications Inc. from advertising that it has the “fastest and most reliable network.” "Rogers was still running with the claim when the facts underneath the claim had changed," Bate said. "The same principles apply online. Make sure your claim is up-to-date. When the question comes forward, you can't assume that, because the due diligence was done once, it holds going forward." Rogers experienced a similar legal challenge in British Columbia, where last year a court granted an injunction to Telus Corp. and barred Rogers from running ads claiming it had the most reliable network. Competitor Telus had launched a new HSPA network that could match the speeds and reliability that Rogers offered. news@thewirereport.ca

Anti-spam bill to change mobile marketing practices, experts say

News | 01/25/2011 9:22 pm EST

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