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Right to mislead

Posted by Don McLenaghen on March 7, 2012

Rogers uses charter claim to fight truth-in-advertising law. Rogers Communications Inc. is asking an Ontario court to strike down part of a federal law requiring a company to have “adequate and proper” tests of a product’s performance before advertising claims about the product — on the grounds that it violates its freedom of expression.

In addition to taking on the performance claim provision of the Competition Act, the telecom giant is arguing before the Ontario Superior Court the hefty financial penalties that can be imposed on a company for making a false or misleading claim are also unconstitutional.

The legal battle with Rogers began in November 2010, when the bureau went to court to levy a $10-million penalty for a “misleading advertising” campaign involving the company’s Chatr! discount cellphone service. The bureau is also asking the court to order Rogers to pay restitution to affected customers and refrain from engaging in similar campaigns for the next decade.

In their advertising Rogers’ Chatr! claimed to have fewer dropped calls than any other competitor and that its customers had “no worries about dropped calls”. A study of the drop rates between Rogers’ Chatr! and the competition showed no difference in drop rates.

The ruling in question and the Competitions law states that before a company can make an advertised claim it must have a test in hand. Rogers is claiming this violates its charter right to free speech because, you may want to sit down for this one…IF what it had said was true but when they said it they did not have proof but later they could provide proof then the test would be a violation because it would prevent them from saying a true thing because they did not know it was true at the time“.

Make sense? No, not to me neither. First the case at hand showed they issued a false and misleading statement. Second, they are saying if there is no proof to the contrary they can claim anything and to prevent them from doing so is a violation of their charter rights (not that I think corporations have charter rights in the first place, but that’s another show!).

This became a more important issue for Rogers because in 2010, the penalty for this infraction went from a paltry $250,000 to $10 million for first offence, and $15 million for each thereafter.

Now, you may ask why is Rogers pursuing this aspect of the case, when it’s Chatr! claim was false? They want a precedent. Even if they lose this case on fact, the precedent will be established so that in the future they do not have to have proof of a claim when they make said claim.

If they get their precedent, in the future they will be able to make claims in their advertisements without actually knowing if those claims are true or not.

I think there is an important aspect here for the skeptical community above and beyond one’s views on corporations. We have often railed against the false or unsubstantiated claims of neuropathy – “this herb will boost your immune system”, chiropractic – “our treatments will reduce asthma”, classic WooWoo medicine – “our treatment will cure cancer” and other pseudo-scientific flim-flam – “our bracelet re-aligns and negates radiation from your phone”. If Rogers succeeds in its challenge, there is a likely unintended ramification that this precedent will be used to promote quack science.

Keep your eyes open on this and let Rogers know you don’t agree with its selfish attempts to reinterpret charter rights in such a way that could harm or even kill people by those who would benefit from their court case.

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