Pricing Algorithms, Social Engineering Fraud Insurance, and Chat Bots

Looking for some weekend reading to catch up on developments? Here are three noteworthy developments and blog posts to consider.

  • Pricing Algorithms and Collusion. The Organisation for Economic Co-operation and Development (OECD) is concerned about the potential for pricing collusion when companies use sophisticated alogrithms to set prices and predict trends. The Secretariat for Financial and Enterprice Affairs Competition Committee updated its background note last month. The background note raises the question as to whether algorithms need to be regulated to prevent pricing collusion that could occur without any human intervention. Read the background note here.
  • Fraud and Crime Insurance Coverage Limitations. In a common social engineering scam, an employee working in accounts payable for company A will be told by someone impersonating vendor Company B that the vendor’s account has changed and to send all future payments to the new account.  If the employee instructs the bank to transfer funds to the new account, will company A be insured for its loss when company B comes looking for its payment? The law firm Blaney McMurtry tells us that a claim for recovery under an insurance policy under the “funds transfer fraud by a third party” coverage was rejected by the Alberta Court of Appeal on just these sort of facts. While the instructions to company A were fraudulent, the employee’s instructions to the bank were not. Read the Blaney McMurtry post here.
  • Chatbots and E-commerce. Chatbots are quickly becoming an important tool in e-commerce. A chatbot simulates a customer service representative so that e-commerce customers can ask questions and receive responses. Chatbots allow organizations to provide online customer service 24/7 without staffing a call centre or chat centre 24/7.   Read Venture Beat’s guest author Stella Saroyan’s article “How chatbots are helping ecommerce evolve.”

Updated Drone Regulations for Recreational Use!

Canadian recreational drone enthusiasts believed that the the Canadian Government’s March 2017 interim regulations regarding the use of drones (unmanned aerial vehicles) were too restrictive. The Canadian government has listened with amendments to the interim regulations announced July 15, 2017.

Operators of drones of under 250 grams (0.55 lbs) are unregulated except for privacy laws. It is unclear how effective privacy laws can be for a drone of under 250 grams that provides no indication of its owner. In any event, if the drone is being used for non-commercial use, it will not be subject to the Personal Information Protection and Electronic Documents Act. This is a big privacy fail by Transport Canada.

Operators of drones weighing between 250 grams and 1 kilogram (0.55 lbs and 2.2 lbs) can now be flown within 30 meters (100 feet) from vehicles, vessels and the public. Drones between 1 kg and 35 kg (2.2 lbs and 77.2 lbs) can be operated within 75 meters (250 feet) from vehicles, vessels and the public.

This is what 75 meters looks like according to and Google:

75 meters.PNG

That’s actually a big distance when you consider that it applies to the “public”. However, that distance doesn’t address the photographic capabilities of the drone, which may be affect a broader field. It will be interesting to see what, if anything, the Office of the Privacy Commissioner of Canada has to say and if the OPC was even consulted.

You can click here to find Interim Order No. 8.

Click here for the Regulatory Impact Analysis Statement.

Food Truck Wars at the Competition Bureau

Are the folks over at Canada’s Competition Bureau unhappy with their choices of local restaurants? Possibly – they sure do take a swipe at their host (the City of Gatineau, Quebec) in a recent report on food trucks. What is clear is that they want Canadian municipalities to review their mobile food regulations (a.k.a. food truck licensing and operation restrictions).

The Competition Bureau states that the Bureau “found no clear evidence that shows detrimental impacts of mobile food services on restaurants.” Instead, they state that these are ”two different business models with different levels of investments and services.”

The Bureau would like to see municipalities: consider:

  • Abandoning the use of selection committees to determine what food trucks operate.
  • Reconsidering whether operating hours are in place for legitimate reasons.
  • Reducing or repealing proximity requirements to prevent food trucks being operate in close proximity to a brick and mortar restaurant.
  • Limiting restricted zones to situations in which there are legitimate traffic management concerns.

Interestingly, the Competition Bureau does not analyze the issue of the use of public spaces for commercial gain and, therefore, the legitimate interest of municipalities in regulating that space. In simply stating that these are different business models, the Competition Bureau failed to engage directly with the complaint by brick-and-mortar restaurants that they have to pay for their space in premium locations whereas food trucks can occupy that space for relatively minimal licensing fees.  The failure to think deeply about this issue is a significant blind spot undermining the Bureau’s analysis.

Will municipalities tell the Competition Bureau to butt-out? Probably. The jurisdiction of the Competition Bureau does not include supervising the public policy decisions made by City Councillors. But if food truck operators wanted to challenge city bylaws, the Competition Bureau has lent a helping hand with a road-map for an argument.

Read the Competition Bureau Report here.

Where did I agree to that? The problem of incorporation by reference

There are many reasons for incorporating provisions by reference in consumer contracts. For example, terms of service may make reference to rules for the acceptable use of the services. A purchase agreement may reference a separate document explaining refunds or shipping terms.

Incorporation by reference is not a good strategy when dealing with clauses excluding liability — unless they are backed up by specifically bringing these clauses to the attention of the consumer.

A recent case illustrates the point.  It involved some lost golf clubs. The golfer signed a membership application that stated: “I, the above member(s), agree to abide by the policy, rules and regulations” of the club. He was given a handbook. The membership handbook contained a provision that said the club was not responsible for golf clubs stored at the premises. Members needed to have their own insurance.

Was the handbook the policy, rules and regulations referred to in the agreement? Probably, but the court said the club hadn’t been clear. The court said that the club didn’t bring this to the member’s attention. The club couldn’t rely on it to exclude liability.

The outcome might have been different if the club had included the provision in the agreement, said that the handbook contained these kinds of terms, or had posted signage.

Interested in the case? You can find it here.


Advertising to Children, Invite-a-Friend, and the State of Consent – Friday Files

Looking for some weekend reading to catch up on developments? Here are three noteworthy developments and blog posts to consider.

  • Marketing to Children? The U.S. Federal Trade Commission has released a welcome guide to complying with the U.S. Children’s Online Privacy Protection Act (COPPA). In Canada, the Office of the Privacy Commissioner has set a high threshold for consent when collecting and using personal information of children under 13 years of age. Although the OPC has not issued similar detailed guidance, marketers will find the FTC’s guidelines to be useful in planning a Canadian strategy as well. These guidelines will not help marketers address Quebec’s unique rules that generally prohibit marketing to children under 13. Find the FTC COPPA Guidance here.
  • Invite-a-Friend Campaigns? Law 360 reports on the outcome of the Poshmark litigation in which the plaintiffs alleged violations of the Telephone Consumer Protection Act (TCPA). The issue was whether the Poshmark App’s “Find People” feature violated the TCPA as an unsolicited invitational text message. When a user of the app used this function, a text message would be sent on behalf of the user to all contacts in the individual’s address book. Poshmark was successful in dismissing the case on the basis that it was not the initiator of the message. Marketers seeking to use this strategy in Canada should exercise caution. Canada’s Anti-Spam Legislation operates differently and might not result in the same outcome without additional steps and due diligence. Read the Law 360 report here.
  • What do Canadians think of Consent? The Office of the Privacy Commissioner of Canada is engaged in a broad consultation on the state of “consent” as a means for individuals to exercise control over their personal information. The news hasn’t been good. Canadians want to be asked for consent but don’t feel they have the information and tools to provide meaningful consent. The OPC commissioned a focus group to gather qualitative information from Canadians on their perceptions. The report prepared for the OPC can be found on the OPC’s website here.

Update on “All-In” Travel Industry Pricing

The Ontario government is proposing to extend the “all-in pricing” rule to cover travel agents and wholesalers located outside of Ontario who target their advertising of travel services to Ontarians. Since January 1, 2017, travel agents and wholesalers located in Ontario who are subject to the Travel Industry Act, 2002 must advertise all-in pricing.

However, the 2017 all-in pricing rule has major gaps because it only applies to wholesalers and travel agents who are located in or have employees in Ontario. As a result of the shift in consumer purchasing habits in the travel industry, the vast majority of travel bookings are now online either directly with the travel service provider or through online wholesalers. Drawing on an Ipsos survey, the Ministry of Government and Consumer Services estimates that 44% of consumers book directly with the travel service provider (airline or hotel) and 27% book using online travel sites. Only 14% book using a store front travel agency.

The proposal is part of the Ministry of Government and Consumer Services consultation on updating travel industry regulations in Ontario. The Ministry is also proposing to grant the Travel Industry Council of Ontario new enforcement tools, including the ability to issue administrative penalties to those who contravene these requirements.

Comments on the Ministry’s Phase 2 report are due July 24, 2017.

For a copy of the Phase 2 report and to learn more, visit the Ministry website here.

Influencer Disclosures on Instagram

Using online influencers can be a compelling marketing strategy for many companies. However, social posts contain product or services endorsements fall squarely within the endorsement guidelines issued by the U.S. Federal Trade Commission and the Canadian Competition Bureau, which require the relationship between the influence and the company to be clearly disclosed. Those endorsement guidelines place the risk of non-compliance squarely on the company whose products or services are being endorsed. Recently, Instagram announced a new tool to make compliance easier. Influencer posts on Instgram will be tagged “Paid partnership with”. Instragam states that when the influencer and the company use this tag “they will both have access to Insights to track exactly how their branded content posts and stories are performing.”

Check out the Instagram announcement here.