Rogers battles for right to lie to consumers

You have to respect a company that's so committed to the value of free speech that they'll do battle in Ontario's Superior Court to defend the principle. Except, perhaps, when the speech the company's seeking to preserve is the freedom to lie to its customers.

That's the peculiar position Rogers Communications now finds itself in. The issue here dates back to November 2010 when Rogers, in the spirit of all giant telecoms, welcomed Wind Mobile to the market by launching a Canada-wide campaign denigrating Wind's services. The ads, for Roger's discount Chatr line, didn't actually mention the new start-up, but everyone understood the inference when the ads cited the "dropped calls" of the "new wireless carriers".

Indeed, the campaign was considered so malicious that the federal Competition Bureau filed a lawsuit seeking to stop the ads from appearing, while also forcing Rogers to issue a public correction and a apology. To compensate impacted customers, Rogers was asked to pay a $10-million fine.

It turns out that Rogers may not have actually known whether its discount service was more reliable than Wind or any other carrier. Knowing that would have required extensive network evaluations and testing of competitors; all of which would be rather challenging. In fact it would involve an analysis so onerous, says Rogers, that no company could not reasonably be expected to do it.

And frankly why should they, when it's so much faster and easier to just make something up? (After all, where's the fun in being a huge conglomerate if you can't use your massive marketing clout to crush upstarts with spurious claims?)

Rogers wouldn't put it in those words, to say the least, but that's largely the issue now at stake. The company is petitioning the Ontario Superior Court to reject a provision in the federal law that requires businesses to actually test products before making claims about their performance. The argument is that such tests are an unfair and unwarranted infringement on the right to free speech.

In this instance, Rogers is also arguing that the $10-million penalty imposed by the Competitive Bureau is so large that it's really in the realm of a criminal fine, without all of the due process considerations that normally accompany criminal law. (Having the money to hire the absolute best lawyers in the land, notwithstanding.)

In an interview with Postmedia, Michael Janigan, executive director of the Ottawa-based Public Interest Advocacy Centre, likens the notion of letting companies like Rogers say anything they want about its services, or the competition, no matter how false, to a "Madison Avenue wet dream", where the only thing that counts is lots of imagination and a big, big budget.