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Advertising Businesses Canada

Telco Company Claims Freedom of Speech Includes Misleading Ads 244

Posted by samzenpus
from the liar-liar dept.
An anonymous reader writes "Rogers Telecommunications is claiming that a ruling by Canada's Competition Bureau violates Rogers' freedom of speech. The company is in court over a 2010 ad campaign where it claimed that its discount brand 'Chatr' was more reliable and suffered fewer dropped calls than the competition. The Competition Bureau found 'no discernible difference in dropped-call rates between Rogers/Chatr and new entrants' and began legal proceedings against Rogers for violating Canada's Competition Act. The Bureau is seeking a $10 million (CDN) fine, an end to the ad campaign, and for Rogers to issue a corrective notice."
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Telco Company Claims Freedom of Speech Includes Misleading Ads

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  • by Stormthirst (66538) on Thursday August 09, 2012 @08:10AM (#40929731)

    I realize Rogers is a Canadian company, so the parallels aren't quite right, but how do the Americans feel this would have played out in the States given Citizens United?

    • by Anonymous Coward on Thursday August 09, 2012 @08:16AM (#40929789)

      C.U. didn't establish the "corporations are people" thing, that was a much older case. C.U. just extended it to electioneering.

      We still have laws against deceptive advertising, although of course those don't apply to politicians. I guess in Freem'Arkhet's ideal system (the anarchocapitalist "libertarian" utopia that I see people call for here) we'd allow the company to advertise whatever they want and the end consumer (invariably the lowest-information actor in the system) would have the responsibility to figure out what was and wasn't bullshit, but we aren't quite there yet.

      • by MickyTheIdiot (1032226) on Thursday August 09, 2012 @08:29AM (#40929915) Homepage Journal

        To extend what AC said here, Corporate Personhood has a very long and sorted history in the U.S. It is considered a precedent by the court, but the way that it became a precedent was through a court clerk inserting a footnote. The history is important and it's something that people should know about. Wikipedia has a good reference here: http://en.wikipedia.org/wiki/Corporate_personhood [wikipedia.org] and the books it references explain the history very well.

        One thing is clear: the founders and never wanted corporations to have too much power. They had direct knowledge of companies with too much power did through their experiences with the East India Company.

        • by RatPh!nk (216977) <ratpH1nk&gMail,com> on Thursday August 09, 2012 @08:37AM (#40929973)

          Corporate Personhood has a very long and sorted history in the U.S.

          Promise I am not being a jerk, but it is sordid. I completely agree with the rest of the story. :)

        • "...One thing is clear: the founders and never wanted corporations to have too much power. They had direct knowledge of companies with too much power did through their experiences with the East India Company."

          I think our Founding Fathers had more direct interaction with Hudson's Bay Company--probably the closest corporations and government can get to each other without one of them giving birth. In this case, that happened anyway and The United States of America was born.

        • by dywolf (2673597) on Thursday August 09, 2012 @10:13AM (#40931097)

          Corporate Personhood was not a footnote inserted by some clerk.

          Corporate Personhood (CP from here in) is essentially just another in the long line of Unintended Consequences.

          Specifically the claim was made that the contract was with the corporation, not the individuals behind it, and since a corporation was not a person, it could not be sued. Thus when they failed to meet the contractual obligations (and get sued for breach) the person wronged was left without any method of redress. CP was a method of holding corporations accountable, and forcing them to fulfil contracts. It was actually fought by many corporations initially.

      • by mcgrew (92797) * on Thursday August 09, 2012 @11:08AM (#40931655) Homepage Journal

        We still have laws against deceptive advertising

        Yes, but those laws are easy to work around. Take the auto industry's past slogans:
        Chevy: like a rock! (damned thing won't start)
        Ford: quality is job#1! (they have their work cut out for them)
        Plymouth: we build excitement! (brakes, steering, and handling suck)

        Notice that American advertisers seldom actually sell the product on its merits. "Sell the sizzle, not the steak."

        Look at the Partnership for a Drug Free America. They formerly stated flat out that marijuana causes cancer until a study proved that not only does it not cause cancer, but prevents cancer in tobacco smokers. So they changed it to "marijuana contains carcinogens" which the average person who hasn't heard of the study will take to mean "marijuana causes cancer." Why note that a substance contains carcinogens when it's been proven not to cause cancer?

      • by Braino420 (896819)

        I guess in Freem'Arkhet's ideal system (the anarchocapitalist "libertarian" utopia that I see people call for here) we'd allow the company to advertise whatever they want and the end consumer (invariably the lowest-information actor in the system) would have the responsibility to figure out what was and wasn't bullshit, but we aren't quite there yet.

        Straw man. Most libertarians would agree that fraud should still be illegal. Sources:
        David Freidman:
        http://www.daviddfriedman.com/Academic/Anarchy_and_Eff_L [daviddfriedman.com]

    • by lorenlal (164133) on Thursday August 09, 2012 @08:17AM (#40929797)

      It wouldn't have even played. There would be no action taken. If they really wanted to lock it up, the company would just sponsor a "study" to "prove" whatever they wanted.

    • by Smallpond (221300)

      I'm not sure what this means, but in the US prosecuting deceptive advertising is the responsibility of FTC Chairman Orson Swindle.

      • by c0lo (1497653)

        FTC Chairman Orson Swindle.

        Until I googled, I could have bet that having FTC and swindle in the same phrase was an intended pun... imagine my surprise when I saw it isn't!

    • This has zero to do with Citizens United, and you're right: not only are the parallels not "quite right": they're utterly wrong.

      That said, the concept of "corporate personhood" in the US isn't a new construct, and didn't start with Citizens United. US case law has treated corporations as "persons" for purposes of suing and being sued since the 1800s. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819) recognized corporations as having the same rights as natural persons to contract and to enforce c

      • > That said, the concept of "corporate personhood" ...

        I first read this as "Corporate priesthood"!

        Which isn't too far off the mark, given how seriously most of us take our jobs and corporate life in general.

        • by radtea (464814)

          I first read this as "Corporate priesthood"!

          This is genius! If corporations are people in the US, and churches are tax-exempt, and according to what James Randi says the religious lobby in the US is so strong that not even the IRS will go after churches, what's to stop a corporation's officers from declaring itself the head of a church--in its role as "corporate person"--and then carrying all of its economic activity out under the untaxed, unscrutinized auspices of that church?

      • by s73v3r (963317)

        Free speech does not include deceptive speech or lies, however.

    • by dywolf (2673597)

      For ths US, truth is advertising is required of commercial ads, but not of political campaigns. Both are speech. But the politcal ads are "political speech" and protected by the 1st amendment as protected speech, including lies and falsehoods. The commercial ads, while "speech", are intended to facilitate the transfer of goods or services for money, and thus are not protected speech because preventing someone from lying to a potential customer to make a sale is seen as the bigger benefit to society than pro

    • FOX News had won the 'right' to knowingly lie in news broadcasts. The court case involved reporters who were told to lie about rBGH hormone in the production of milk; when they refused to lie on Monsanto's behalf, they were fired.

      http://foxnewsboycott.com/resources/fox-can-lie-lawsuit/ [foxnewsboycott.com]

    • with whomever has the best lawyer, and pays the most money to congresmen...

      the telcoms. Now, if customers were misleading telcomes they'd get a 5am visit from swat teams on illegal activity charges.
  • by Forty Two Tenfold (1134125) on Thursday August 09, 2012 @08:11AM (#40929747)
    You can say anything you want. Just have the balls to suffer the consequences. That's why I don't post unpopular opinions anonymously.
    • The only permissible 'consequence' against 'offensive' speech should be nothing more than a counter statement.

      • by djmurdoch (306849)

        When the speech is a fraudulent claim (as in TFA), there should be harsher consequences.

      • The only permissible 'consequence' against 'offensive' speech should be nothing more than a counter statement.

        I would disagree. It is perfectly acceptable for people to choose to not associate with or do business with people whose speech they find offensive. So, one consequence of "offensive" speech is that some people will choose not to do business with you. Carbonite has discovered this effect. They publicly stated that they were choosing to not do business with someone who said something they found offensive about someone who supported the same political positions as their CEO (even though they continue to do bu

      • by timeOday (582209)
        So my only recourse for buying some cancer medicine that turns out to be sugar pills would be calling the manufacturer a liar? After I'm dead, that is?
        • by ArhcAngel (247594)
          I make a distinction between "offensive" and "deceptive" and I'm hoping PP does as well. When I say something I cannot know for sure if it will or won't offend you. If I tell you something that I know isn't true that is deceptive whether you are offended by it or not.

          So if a guy walks up to a woman and tells her "You have a really nice [insert female body part of choice]" she may or may not get offended depending on her sensibilities but if he walks up to her and says "My unit is two feet long and as wid
      • by s73v3r (963317)

        Depends on what the "offense" is. Is it just an unpopular opinion? Then yes, you are right. Is it a company flat out lying about their service or product? There damn well had better be some real consequences for that.

    • Um.... so basically, posting anon == no balls? [citation needed, please]
  • by Maow (620678) on Thursday August 09, 2012 @08:16AM (#40929791) Journal

    I thought the founding of Chatr, the 2nd subsidiary of Rogers, located only in major metropolises where Wind Mobile & Mobilicity operated was an anti-competitive "crime".

    They'd had years of operation prior in which they could've set up such a company, or better yet offered better prices, but no - wait until there's some real competition then try to steal their potential customers (I say steal because they noticeably did not use the Rogers name as so many people are / were disgusted with them and looking for someone else to do business with).

    Anyway, fuck Rogers, as soon as 35.5 months of my 36 month contract were up, I ported to Wind (Rogers tried to charge me early termination even though I was paying for that 36th month - I refused to pay).

    Now I get unlimited North America wide talk, unlimited global SMS, voice mail, call display, conference calling, and unlimited internet (throttled after 5 Gb/m) with tethering ... for $40/m. Yeah, fuck you Rogers. (And no, I have no affiliation with Wind other than customer.)

    • Problem with Wind is network coverage. If you aren't in one of the 6 major cities in Canada ... you're roaming. And Wind's roaming charges aren't tiny.

      Rogers may not be the best telco out there, but at least they have coverage in major cities, minor cities, and most little towns. Highway coverage between towns is spotty. But at least there's some.

      Plus, Rogers has LTE across all the major cities, with most of the minor cities going online this year, and the tiny towns getting it next year.

      The only real d

  • by fahrbot-bot (874524) on Thursday August 09, 2012 @08:16AM (#40929793)
    ... fried chicken and french fries are now health food and the Pill can prevent STDs.
  • Freedom of speech? (Score:5, Insightful)

    by xmundt (415364) on Thursday August 09, 2012 @08:18AM (#40929809)

    Greetings and Salutations;
              I have to point out that "freedom of speech" is not absolute. It does not absolve the speaker from having to take responsibility for their words, nor, is it license to lie without consequences. This has been ruled upon a number of times by the Supreme Court here in the US. I have to say that this is one area where I agree with the Justices (although there are plenty of other areas where we disagree). The way that truth in advertising has become as rare as an Emu these days is a terrible thing and should not be tolerated. If your marketing people are so incompetent that lying about one's competition is the only way they can find a way to show that your company is a better choice, either you need to hire better people, or, admit that they have a point, and, shut down your company, since it obviously is worthless.
              Pleasant dreams.
            Dave Mundt

  • Dear Rogers (Score:2, Informative)

    by Anonymous Coward

    (Posting AC because I'm at work and I don't log into websites from work...)

    Dear Rogers, Canada doesn't have Freedom of Speech. That's an American thing (one of the things that I think America got right where Canada got wrong). Using "freedom of speech" as your defence for lying shows you're not only liars, but you're stupid too. Enjoy your $10 million fine.

    • (Posting AC because I'm at work and I don't log into websites from work...)

      Dear Rogers, Canada doesn't have Freedom of Speech.

      Ahem.

      Canadian Charter of Rights and Freedoms ...
      2. Everyone* has the following fundamental freedoms:
      (a) freedom of conscience and religion;
      (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
      (c) freedom of peaceful assembly; and
      (d) freedom of association.

      *It's that word that allows corporations to enjoy these freedoms as well as natural humans.

      These freedoms (and all the others) are all modified slightly by clause 1 of the Charter:

      1. The Ca

      • Interestingly, the Charter applies to people, not corporations, and there's no definition of corporation as a legal person in relation to the charter in Canadian law. So I'm not entirely clear how Roger's intends to argue this.

        • Some clauses of the Charter apply to corporations, as well as people. Clause 2b definitely applies to corporations. See Irwin Toy v. Quebec [lexum.org] in which a Toy company sought to have laws regulating advertising directed at children under 13 struck for unconstitutionality. 5 Justices of the SCC agreed that "commercial speech" (in this case, advertising from a corporation) was protected. They split on whether the government's regs were justified in a free and democratic society (3-2 in favour of the government).

  • in that a person can lie, and this is protected speech

    so maybe we need to more forcefully commit to the notion that a corporation is NOT a person and does NOT deserve the same protections

    in the USA, anonymous trolls lying and making shit up is analogous to corporations and rich people committing secret soft money to untraceable political actions. when will we have our first scandal where Chinese money tinkers with American politics in this way? so why exactly is it allowed that rich people and corporations

    • Slander and libel are both illegal. They have both been illegal for a very long time going back to British laws. The one difference is that truth is considered a defense in the U.S. while in the U.K. it can still be considered irrelevant.

      Lies are *not* protected speech when harm can be demonstrated.

      • by dkf (304284)

        The one difference is that truth is considered a defense in the U.S. while in the U.K. it can still be considered irrelevant.

        The main difference there is that something being true doesn't mean that you have a right to say it; certain parts of the truth are still unreasonable and harmful to say. Something being the truth does shift the onus much more strongly towards the plaintiff to show that it shouldn't have been said though. It doesn't come up very often, to be honest.

    • by Hatta (162192) on Thursday August 09, 2012 @08:56AM (#40930203) Journal

      in that a person can lie, and this is protected speech

      A lie is protected speech. A lie for profit is fraud.

    • A person can lie and that is protected speech. However, a person cannot commit fraud by telling someone that they will provide them with a service and then no provide that service. In this case, Rogers was offering the service of being "more reliable and suffering fewer dropped calls" than their competition. They failed to deliver this service. That means they were committing fraud. In this case the government is calling that fraud "deceptive advertising".
    • by m.ducharme (1082683) on Thursday August 09, 2012 @10:14AM (#40931103)

      Not all speech is protected, and there is a strong argument that the particular speech in question amounts to fraud, which is definitely not protected constitutionally, in Canada or the US.

  • Fraud Vs. Freedom (Score:4, Insightful)

    by Darkness404 (1287218) on Thursday August 09, 2012 @08:43AM (#40930037)
    There is a difference between fraud (lies used to gain a sale) and free speech. Whether this specific instance counts as fraud is questionable (every business is going to say their product is the "best" and every consumer knows, or should know that).
  • Vote for me and I'll do this ...
    My opponent is bad because ...

  • Freedom of speech != Freedom from consequences.
  • by AlecC (512609) <aleccawley@gmail.com> on Thursday August 09, 2012 @09:37AM (#40930679)

    While I can accept that freedom of speech includes the freedom to lie, it includes the duty to accept the consequences of lying.

    So I would say that anybody who made a purchase based on a premeditated lie should be able to request not only a refund of anything paid but punitive damages. It should refund all customers who bought the lied about product, say, three times the amount they paid plus allowance for disruption and time wasted.

  • by Lieutenant_Dan (583843) on Thursday August 09, 2012 @09:55AM (#40930897) Homepage Journal

    Not Speech!! Like everyone pointed out, that's an American thing. Canada's charter of rights has "Freedom of Expression".

    Now, Rogers is still bonkers and this should not apply to a corporation.

    Come on Editors, at least read the first paragraph of the linked CBC article.

  • by dskoll (99328) on Thursday August 09, 2012 @10:20AM (#40931143)

    Rogers and Bell are the Evil Duopoly in Canada. I'm not surprised Rogers is fighting for the right to lie to potential customers.

  • They are absolutely right. Free speech rights should allow them to tell any lies, misleading stories, and so on. On the other hand, consumer protection requires them to follow their free-speech-right guaranteed lies by factually correct statements.

    Like: The cheque is in the post. No, it isn't, and you would be stupid if you believe it. Our network is the best in the country. No, it isn't. Our own numbers prove that it is the worst.
  • Free speech is absolutely necessary in a democracy. Free speech is the last refuge of soundrels.

  • Is it just me... (Score:4, Insightful)

    by alaffin (585965) on Thursday August 09, 2012 @01:39PM (#40934131) Journal

    ...or does this not seem like the perfect opportunity for the competition to hoist Rogers by their own petard? I mean really - free speech? Then what's to stop me from telling the world about how Rogers phones emit a high powered form of ionizing radiation that causes impotence in males? That Rogers internet service will infect your computer with malware. That Alan Horn (Chairman) is an accused paedophile and that Nadir Mohammed (CEO) is terrorist?

    I mean it's all free speech right?

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