Watch This (Email) Space: New Private Right Of Action For Misleading Representations

As 2016 draws to a close, almost everyone is consumed with preparing for the coming holiday season. However, businesses advertising in Canada would be wise to take a few moments this holiday season to start planning for next summer. Beginning in July 2017, private parties will be able to sue for contraventions of section 74.011 of the Competition Act (Act), which prohibits misleading representations contained in various portions of electronic messages. As discussed below, this new private right of action and the class actions that inevitably follow will significantly impact a variety of digital marketing efforts in Canada.

Summary

Section 74.011 of the Act prohibits misleading or false representations in any "electronic message" (e.g., email, text messages, social media posts, websites, and apps), including in the subject line, the sender information and any URLs or metadata that the message contains. The section applies to a person who sends such a message as