Advertising Standards Canada (“Ad Standards”) is a not-for-profit self-regulatory body that provides competitors with a confidential forum for the resolution of advertising disputes as an alternative to a court action. The process for dispute resolution with Ad Standards is governed by the Advertising Dispute Procedure (the “Dispute Procedure”). The Dispute Procedure is intended to provide a quick, pragmatic and cost-effective process to resolve advertising disputes and facilitate the expeditious amendment or withdrawal of advertising that contravenes the Canadian Code of Advertising Standards (the “Code”).
On February 11, 2019, Ad Standards significantly amended its Dispute Procedure as a result of the consultations it had conducted over the course of 2018. In addition to consulting members, Ad Standards considered the dispute procedures of self-regulating advertising agencies in other jurisdictions, including the National Advertising Division in the United States and the Advertising Standards Authority in the United Kingdom, to optimize its Dispute Procedure.
Below is an overview of the key changes to the Dispute Procedure.
- Complainants must show good faith attempt to resolve the dispute prior to filing a complaint
In order for a complaint from an advertiser to be accepted by Ad Standards, the complainant must satisfy Ad Standards that it has made a good faith attempt to resolve the disputed issues, but without success.
- Resolution meetings are now voluntary
Prior to the recent amendments to the Dispute Procedure, parties to a dispute were required to participate in at least one resolution meeting conducted by Ad Standards for the purpose of reaching a mutually agreeable resolution of the issues in dispute. Although either party can now request a resolution meeting, attendance is no longer mandatory.
- No oral hearing; written submissions only
If the parties are not able to come to a mutually acceptable resolution of the issues in dispute, the parties may make written submissions to an adjudication panel. However, the Dispute Procedure no longer includes an opportunity for oral submissions.
- Downsized Adjudication Panel
Under the new Dispute Procedure, the adjudication panel has been downsized from a five-member panel to three-member panel. The panel is chaired by a lawyer experienced in advertising and marketing law, joined by two panellists drawn from the advertiser, communication/advertising agency, media and industry sectors.
- Discretion regarding the timing of the remedial action
Under the previous Dispute Procedure, a defendant advertiser would be required to withdraw or amend the offending advertisement in accordance with the adjudication panel’s decision based on a fixed timeline. Under the new Dispute Procedure, the adjudication panel has the discretion to set an appropriate time in rendering a decision for the defendant advertiser to amend or withdraw an offending advertisement. The timeline for the implementation of corrective actions will depend on the media within which the advertising appears and the ease or difficulty with which the requisite corrective action can be accomplished.
- No right of appeal
The new Dispute Procedure, unlike its predecessor, does not allow an unsuccessful party to appeal the decision. The decision of the adjudication panel is therefore final.
- Publication of case summaries
The Ad Standards dispute resolution process remains entirely confidential under the new Dispute Procedure. That said, Ad Standards will publish summaries of the decisions rendered, but will not disclose the identity of the parties and of the members of the adjudication panel. However, Ad Standards may publish the identity of the parties where the defendant advertiser fails to fully implement the remedial action outlined in a decision.
- Shorter “Start-to Finish” timelines allow for significantly lower fees
Ad Standards estimates that the entire advertising dispute resolution process can be completed in 32 to 37 business days. Having greatly simplified its Dispute Procedure, Ad Standards is now able to offer its dispute resolution service at significantly lower fees than those under the old Dispute Procedure.
The hope is that these streamlined procedures provide a more effective alternative for resolving advertising disputes.