Advertising – Can they really say that?! Advertising self-regulation in Canada – Part 4

Posted on by Mary G. Griffith

A responsible advertiser ensures that advertisements are compliant with the applicable legislation and, if they are in any of the five regulated categories (see my previous blog – Advertising – Can they really say that?! Part 2), that they have been pre-cleared if they will be aired on broadcast media.  But what do you do if your competition is advertising in a way that you feel is inappropriate in some way, and is in violation of one or more of the clauses of the Canadian Code of Advertising Standards (the “Code”)?  As an advertiser, how and to whom do you complain if you see an ad that you feel is inaccurate, or inappropriate in some way?

We ALWAYS recommend that the first recourse for an advertiser who feels that they have a valid, supportable complaint with regard to a competitor’s advertising, is to try to resolve the issue between the organizations, with communication between senior executives.  Note that this step should always involve oversight by legal counsel so as to ensure that it is not misconstrued as being contrary to the Competition Act.  IF this does not resolve an issue, there are various other options that can be undertaken; an advertiser, like an individual consumer, can make a complaint to the Competition Bureau, or under a number of other statutes, however Advertising Standards Canada (ASC) also has a specific procedure available to resolve advertiser complaints.  Both options have their own advantages and disadvantages and each may have a place in an organization’s strategy to resolve a dispute.

Here, I will begin to explore ASC’s advertiser complaints procedures by discussing the dispute procedure itself.  In my next blog posts, I will continue this discussion by exploring appeals, confidentiality, enforcement, timing and costs association with ASC’s procedure.

Dispute Procedure

To initiate the procedure under ASC, a complaint is submitted to the VP Standards, ASC, in writing, and signed by a senior officer of the Advertiser or their representative.  The written complaint must set out the basis of the allegation being made and the provisions of the Code that are allegedly being violated, and be accompanied by the applicable filing fee.  While it is not required, it is typically the case that the original complaint is prepared by legal counsel, regardless of whether it is to be submitted by the Advertiser or counsel on their behalf.

The process has two principal stages subsequent to a complaint being lodged and initially assessed by ASC as having raised a possible infraction of the Code.  The first stage resolution involves convening at least one meeting between the parties to attempt to reach a mutually acceptable resolution of the complaint.  If a resolution cannot be reached, the second stage is a hearing before an Advertising Dispute Panel that is comprised of five (5) representatives, one from each of the following groups: Advertisers, Advertising Agency, Media, Legal and Public.  It is important to note that if a Hearing is convened, the Panel does not hear or consider any potential resolutions or near settlements that may have been discussed by the parties in the first stage of the process.  This is a consideration worth bearing in mind as a Panel decision may be less palatable than a settlement reached between the parties (who also have a must better and more intimate knowledge of the specific industry and target group involved).  The conduct of the Hearing itself is prescribed in the Dispute Procedure and entitles each side (complainant and defendant) to make an initial submission in support of their position, not exceeding 45 minutes.  This is followed by a brief period, if necessary, to respond to any enquiries from the Panel or the other party, and then each party is given a chance to provide a short summary of their position.

Once the Panel has issued its decision and informed the parties, they may either comply with the decision or request leave to appeal to a second Panel Hearing (whose decision, as an Appeal Panel, is final).

An interesting side note that I will deal with in more detail in a subsequent post, is that neither the Dispute Panel nor the Appeal Panel recognize previous decisions that may have been made in other dispute procedures.  In other words, there are no precedents set, so an advertiser may find that a decision in one hearing may be totally inconsistent with one made in another dispute hearing to which they were a party.

If the Dispute Panel sustains the complaint, in whole or in part, it may require the defendant advertiser to withdraw the advertising in question, or to amend it to bring it into compliance with the Code.  However, the Decision will frequently provide the defendant advertiser time to make the amendments or withdrawals, even up to several months.  This may be done because the Dispute Procedure is voluntary and ASC may be reluctant to be too harsh in its administration of the Procedure so as to not tempt noncompliance, however too much accommodation of a party that has been found to be in violation of the Code risks undermining ASC’s position as guardians and enforcers of that same Code.

Keep an eye out for my next posts, where I will be discussing the appeal procedures in more detail, as well as issues of confidentiality, enforcement, timing and costs associated with ASC’s procedure.

It is a Governance Issue or a Management Issue? An Often Made Misdiagnosis

Posted on by Michael A. Chambers

It is popular these days to label almost every complaint about the management of an organization as a governance issue. This belies the notion that having structures, policies, and procedures in place that incorporate the principles of good governance within an organization will ensure that good and sound management decisions will be made by those in charge.  No it won’t.  Good governance is not a panacea for bad management.  It is extremely important that organizations have good governance but to succeed they must also have good management.

At the end of the day it is the quality of the individuals involved that may be said to make all the difference. Bad management of an organization is not always on account of the failure of the organization to have the principles of good governance in place.  Application of the principles of good governance serve to keep what one might call bad management in check, and to expose it, but at the end of the day within the framework of good governance principles bad managers can still make bad decisions.  Something akin to “regime change” may be what an organization requires in order to lift it out of the doldrums of bad management, and of course the presence of structures and processes of good governance should make this an easier end to achieve.

Similarly, I often hear in non-profit organization complaints about “governance” by a particular group within the organization who are not happy with the direction the organization is taking. The complaint is often labeled by the dis-satisfied group as a “governance issue” within the organization.  And, it may not be a governance issue at all – there may be transparency, accountability, inclusivity, etc. within the organization’s manner of function.  It just so happens that of two separate directions to take, the one adopted by the organization, and the majority of its members in a very democratic way, is not the direction favoured by the group complaining of a “governance issue” within the organization.  This is not a “governance issue” and it may well not be a “bad management” issue.  It may be simply that choices of direction from time to time have to be made by organizations and members may feel passionately about the rightness of their supported direction so that when it is not the one selected, within a good governance model, the sky is going to fall and the group responds to the organization’s decision with the labelling that there must be something wrong with the organization’s governance.

Not necessarily so. One must be careful in diagnosis and treatment: there may in fact be nothing that needs treatment at all.  And if treatment is required, it may not be the governance of the organization that requires treatment; it may be that its management does.

Ten Dollars Has Never Been Worth So Much!

Posted on by Gordon B. Greenwood

This blog is about ignorance. Mine! Oh it’s not wilful, at least I hope to heaven it’s not.  Still it is always hard to be called ignorant, particularly by yourself.  It has recently been announced that Viola Desmond’s image will appear on Canada’s $10.00 bill.  The only female, other than royalty, to appear on our Canadian currency.  The first I really paid attention to the announcement was when I read an article questioning whether Ms Desmond was the appropriate selection as compared to a number of others who were named.  Not only did I have no clue who Viola Desmond was, but I also either didn’t know the names of the other women nominated or didn’t know enough about them to be able to draw my own conclusions.  So much for thinking of myself as educated and informed!

I found out that there were 461 iconic Canadian women who met the criteria to be considered for selection by a special advisory council, ultimately leading to the choice of the woman who would have the honour of adorning our $10.00 bill.

If I ever needed anything to point out just how little I know about my own country, let alone iconic women, this list certainly did it. How few names I knew, let alone how little I knew about what these women had achieved!

Viola Desmond was born and raised in Nova Scotia but, to be educated in her chosen career of cosmetology, she had to leave there to do so because she was black. As it turns out, Nova Scotia was fortunate enough to get her back.  People like Josephine Baker left the United States to achieve stardom in Europe and never returned since she wouldn’t be accepted in the U.S. at that level by virtue of her colour.  If you ask people in Canada and the United States why they fought the world wars and other conflicts, they will likely tell you it was for “freedom”.  Wars were fought and won for freedom from fascism, later freedom from communism but I guess winning freedom from racism wasn’t the right kind of “ism”.

Once she was educated elsewhere, Ms Desmond was free to return home as a hairstylist, free to start up her own company and free to have commercial success by providing services and selling goods. What it appears she was not free to do was to sit where she wanted in a New Glasgow movie theatre, irrespective of her willingness to pay the price of the ticket.  She was jailed, she was fined, she was unjustly accused of fraud, all because she chose to sit in the lower seats of a cinema among white folks.  Rosa Parks, 9 years later, became famous (infamous) because she refused to move to the back of the bus in the United States.  Who the first woman was to stand up against such discrimination truly doesn’t matter, but what does matter is why they had to do it at all.

I have heard of Rosa Parks, Martin Luther King Jr., Coretta Scott King, Nelson Mandela and Bishop Desmond Tutu. Who is Viola Desmond? I am Canadian and I had not heard of Viola Desmond.  I have lived in Nova Scotia twice, been educated there twice, and had not heard of Viola Desmond.  My ignorance of Viola Desmond and my naiveté at the racism in Canada lies at the feet of my teachers and the educational system they propounded.  Any continuing ignorance of mine about Viola Desmond, about the 461 iconic Canadian women considered for selection and about discrimination and racism in Canada will now mean that my ignorance is self-perpetuated…shame on me if that happens.

Every hair stylist should take pride in the fact that a Nova Scotia pioneer thought so highly of your profession that she left the country so as to achieve the training denied to her at home. When we think of Paula Kent and Redken, Horst Rechelbacher and Aveda, Toni & Guy, Vidal Sassoon and all the others, as Canadians we should take time to remember the dedicated black woman who started her own (successful) cosmetics business in Nova Scotia when such successes were so much more difficult to accomplish. As to Ms Desmond’s unsolicited reputation as a civil rights activist, all she wanted was what we take for granted – recognition as a person.  Race, sexual orientation, religion, colour, creed be damned.

When that bill hits the streets, let’s put it up in our offices, salons, warehouses and factories. It represents a lot more than merely $10.00.