3rd Session, 43rd Legislature

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Bill 49

THE BUSINESS PRACTICES AMENDMENT ACT

(Assented to                                         )

HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. B120 amended

1   The Business Practices Act is amended by this Act.

2   Section 1 is amended

(a) by adding the following definitions:

"electronic shelf labelling system" means, subject to the regulations, electronic or digital equipment, and the associated hardware, software and communication protocols, that

(a) displays the price of a good at or adjacent to the place where the good is offered, and

(b) is capable of electronically updating the price of the good, including by remote or centralized input; (« système d'étiquetage électronique de rayon »)

"online distributor" means, subject to the regulations, a person who is carrying on or is engaged in the business of facilitating the distribution of goods by connecting consumers, suppliers and delivery workers through an online platform; (« distributeur en ligne »)

"online platform" means, subject to the regulations, an online marketplace that enables or facilitates

(a) selling, leasing or otherwise disposing of goods on a retail basis, or

(b) distributing goods on behalf of a supplier; (« plateforme en ligne »)

"online retailer" means, subject to the regulations, a person who is carrying on or is engaged in the business of selling, leasing or otherwise disposing of goods on a retail basis through an online platform and includes a third party who does so through another party's online platform; (« détaillant en ligne »)

"personalized algorithmic pricing" means, subject to the regulations, pricing that is based on the use of an algorithm or automated processing to set, recommend or vary a price offered to a specific consumer as a result of data about the consumer collected, analyzed or processed with or without the consumer's consent, knowledge or involvement, including, without limitation, data about

(a) the consumer's personal information, attributes and behaviours, such as

(i) the consumer's browsing or purchasing history, consumer habits or spending patterns,

(ii) the consumer's electronic devices used in browsing or purchasing and their profiles on such devices,

(iii) the consumer's inferred willingness to enter into the consumer transaction,

(iv) the consumer's demographics or socio-economic status, including their income level,

(v) the consumer's employment pay period or financial assistance payment schedule,

(vi) the consumer's credit history,

(vii) the consumer's location, including their address for the delivery of the good,

(viii) the consumer's medical history or health status, and

(ix) any other information, attribute or behaviour prescribed by regulation, and

(b) any other matter prescribed by regulation; (« tarification algorithmique personnalisée »)

(b) in the definition "supplier", by adding the following after clause (c):

and, for certainty, includes an online retailer and an online distributor;

3(1)   Subsection 2(3) is amended

(a) in clause (r), by adding "(including as part of an online platform)" after "an advertisement, display or representation";

(b) by adding the following after clause (r):

(r.1) where the price of a part of the consumer transaction is displayed by way of an electronic shelf labelling system, demanding a higher price from the consumer at the point of sale due to personalized algorithmic pricing in respect of that consumer;

(c) by adding the following after clause (u):

(v) in the case of an online retailer or online distributor, the use of personalized algorithmic pricing to increase the price of the goods demanded from the consumer.

3(2)   The following is added after subsection 2(3):

Use of personalized algorithmic pricing is material fact

2(4)   For the purpose of clause (3)(p), the use of personalized algorithmic pricing as part of the consumer transaction is deemed to be a material fact.

Interpretation — "express consent"

2(5)   For the purpose of clause (3)(q) as it relates to a supplier that is an online retailer or online distributor, a consumer is deemed to give their express consent to the higher price only if

(a) the supplier prominently discloses to the consumer the reason for the higher price in clear and understandable language; and

(b) the consumer takes clear overt action to consent to the higher price.

4(1)   Subsection 3(2) is amended by striking out "or" at the end of clause (a), adding "or" at the end of clause (b) and adding the following after clause (b):

(c) a supplier that is an online retailer or online distributor or that uses an electronic shelf labelling system takes advantage of a consumer by demanding a price that is higher than the price offered to other consumers because of personalized algorithmic pricing in respect of that consumer.

4(2)   Subsection 3(3) is amended

(a) in clause (b), by striking out "whether the total price" and substituting "except where personalized algorithmic pricing is used, whether the total price"; and

(b) by adding the following after clause (b):

(c) in the case of an online retailer or online distributor, whether the total price, including the mandatory fees and charges, and any other material facts, are disclosed to the consumer in clear and understandable language and posted in a prominent manner;

(d) in the case of a supplier that is an online retailer or online distributor or that uses an electronic shelf labelling system, the extent to which the collected, analyzed or processed data about the consumer that is available to the supplier is also available to the consumer.

5   Section 7 is amended by renumbering it as subsection 7(1) and adding the following as subsection 7(2):

Mode of occurrence

7(2)   An unfair business practice may occur through the use of algorithms, data analytics, machine learning or artificial intelligence by the supplier or a third party, and is an unfair business practice for all the purposes of this Act notwithstanding that no consumer transaction is in fact entered into or concluded.

6   Clause 18(1)(c) is amended by adding "or, if the supplier is an online retailer or an online distributor, in a prominent place on its online platform" at the end.

7   Subsection 32(1) is amended by adding the following after clause (b):

(b.1) extending or limiting the meaning of the definitions "electronic shelf labelling system", "online distributor", "online platform", "online retailer" and "personalized algorithmic pricing" in section 1;

(b.2) prescribing any other matter for the purpose of subclause (a)(ix) or clause (b) of the definition "personalized algorithmic pricing" in section 1;

8   Subsection 33(3) is replaced with the following:

Limitation

33(3)   A prosecution for an offence under this Act must not be commenced more than two years after the day on which evidence sufficient to justify a prosecution for the offence came to the knowledge of the director. The certificate of the director as to the day on which the evidence came to their knowledge is evidence of that date.

Coming into force

9   This Act comes into force on a day to be fixed by proclamation.