Michael Geist

As two of Canada's biggest Internet service providers, Bell Canada and Rogers Communications are fierce rivals that frequently battle for the same customers. That marketplace fight rarely spills into the courtroom, yet my weekly technology law column (Toronto Star version, Ottawa Citizen version, homepage version) notes that last month a Rogers advertising campaign prompted Bell to file a $50 million dollar lawsuit.  The result was an end to the campaign and evidence both companies over-promise the speed of their Internet services.

The case began when Rogers launched a direct mail and Internet ad campaign called "Check Your Speed."  The campaign warned users the Internet services "you are paying for may not be what you're getting" and encouraged them to test their connection with an independent third party.  The campaign unsurprisingly offered Rogers services as an alternative, promising a "reliable speed every time you connect." Just days after the launch, Bell filed suit, arguing in court documents violations of the Trade-Mark Act, Competition Act, along with various torts.  The company sought $50 million in general damages, $1 million in punitive damages, and an injunction blocking Rogers from continuing with its campaign.

Two days later, Rogers dropped the third party testing feature.  Rather than using a fully independent third party service, Rogers had used a server located in Seattle, Washington to run its tests.  The court found that the distance between users in Ontario and the speed test server in Washington might help account for slower speeds. Even more telling was the evidence that placed the spotlight on a Canadian industry practice of advertising the maximum or "up to" speeds for customers, rather than minimum or actual speeds that customers typically obtain.  The Rogers campaign was effectively premised on this discrepancy since it encouraged users to check their speeds where they would undoubtedly learn their typical speeds were lower than those promised by their ISP.

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