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Rogers Misleading Advertising Case Heads To Ontario Court

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Call it a case of Tea Party thinking infecting Canadian business.

Rogers Telecommunications, having been ordered to pay a $10-million penalty for misleading advertising, is arguing before an Ontario court this week that regulations preventing it from providing false information violate its Charter right to freedom of expression.

If the Ontario Superior Court of Justice rules in Rogers’ favour and against the Competition Bureau -- which levied the penalty against Rogers -- it could open the door to an anything-goes approach to advertising in Canada.

“Using ‘freedom of speech’ as an excuse for misleading Canadians? Big Telecom lobbyists just don't seem to know when enough is enough,” media consumer advocacy group OpenMedia commented on its Facebook page.

The Competition Bureau levied the $10-million fine in November, 2010, after finding Rogers’ Chatr wireless brand had engaged in “misleading advertising” with its claims that Chatr users experience "fewer dropped calls than new wireless carriers" and have "no worries about dropped calls".

After reviewing technical data, the bureau concluded that “there is no discernible difference in dropped call rates between Rogers/Chatr and new entrants.”

The Bureau also ordered Rogers to “pay restitution to affected customers.

”Rogers will argue in front of the court that the requirement that companies run performance tests before making claims about performance in its advertising violates its Charter rights to free expression, reported Sarah Schmidt at Postmedia.

Michael Janigan, executive director and general counsel at the Public Interest Advocacy Centre, told Postmedia that “the case effectively advances the proposition that companies that advertise shouldn’t be forced to actually have the facts and evidence on hand before they make a claim and it somehow devalues public discourse if they are forced to do so. With all due respect to that position, it sounds a bit like a Madison Avenue wet dream.”

Rogers responded by saying its case is actually much more narrow. “We’re committed to truth in advertising and support legislation that prevents false claims and protects consumers, including the Competition Act. We’re not challenging that fundamental principle. We’re raising two specific, narrow concerns with the act as it now stands,” spokeswoman Patricia Trott told Postmedia.

The case began in 2010 when upstart wireless carrier Wind Mobile filed a complaint against Rogers with the Competition Bureau, arguing there is “absolutely no solid or objective technical basis” for Rogers’ claims. The Competition Bureau agreed.

The case is expected to last through the month.

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