Most of us know the law tends to lag behind the marketplace. It is in the nature of most legal systems to try and balance statutory and regulatory authority—which makes rules based on experience or potential issues that will apply to future conduct—with judicial and regulatory decisions—cases that are adjudicated, create precedent and help shape the contours and boundaries of what is or is not permissible behavior within the statutory authorities.
In such a framework, we are often asked to counsel clients as to what is or is not acceptable when there may be little law, few regulations and sometimes no precedent. What to do? Well, as you may imagine, there is no simple answer. But there are some guideposts. A key guidepost is to consider common sense, best practices and some lessons learned from analogous legal precedent.
Continue reading “It’s a Dyanmic Environment Out There: Yes, You Can Still Avoid Being a Target”
According to a report in Media Week, advertising spending for advertising in videogames will reach about $1 billion by 2012. Advertising in video games can take a number of forms: in-game advertising, which is preformatted ads that appear within the game itself; advergames, which are games constructed around a particular brand or product in order to highlight and promote that product or brand; context-sensitive or dynamic advertising, which is similar to in-game advertising, but rather than static advertisements, can be contextually modified in a number of ways depending on when, where and how the in-game scene is viewed. Most of that growth is projected in the casual, online, web game world catering to a broader audience than hard core console gamers. The logic is that people are more willing to accept advertising in return for free game playing on the web; and absent a dynamic Internet connection with more user acceptance than is evidenced to date, console gaming provides fewer opportunities for placing context sensitive or behavioral advertising.
To settle FTC charges of deceptive advertising, ValueClick (and its subsidiaries—we’ll just use ValueClick, for short) agreed to pay $2.9 million. In addition to the civil penalty, among other things, ValueClick agreed to conspicuously disclose costs and obligations associated with “free” products. ValueClick is also precluded from making any deceptive claims about the security of a consumer’s information collected by its websites. The FTC charged that ValueClick attracted web traffic using deceptive e-mails, online banner ads and pop-ups claiming individuals were eligible for “free” gifts, but instead were required to plow through and participate in tiresome and potentially expensive third-party offers in order to receive the “free” products. With respect to the security of consumer information, ValueClick’s privacy policies represented that customer information was encrypted—but that either there was no encryption, or a non-standard, insecure form of encryption was used. The proposed order would require ValueClick have a comprehensive security program and obtain independent thirdparty assessments of their programs for 20 years. This is not the first time the FTC has brought an enforcement action against “lead generating” companies, and certainly among a string of cases relating to the data security and information security practices of companies handling non-public consumer information.
Joseph I. Rosenbaum will be speaking at the Virtual Worlds Conference in New York (April 3–4) on the subject of Marketing to Children in Virtual Worlds: At Play or As Prey? exploring the emerging use of virtual worlds to advertise and market, exploit, educate and entertain children. Joe will also be a panelist at the 40th International Advertising Association Conference in Washington, D.C. April 7 on the subject of Mobile Mayhem.
This month we want to know if you can identify the nation that holds the title of the oldest democracy on earth. Send your answers to me.
Last issue we asked if you can tell us how many times, since official records have been kept, Niagara Falls has frozen over completely. Congratulations to Shari Gottesman, one of our loyal readers and a past prize winner, who very quickly responded by correctly telling me that the flow of water is too great for all of Niagara Falls to completely freeze—although there have been ice bridges that have formed and the American Falls were stopped six times since records have been kept because of ice jams. There are claims that the Falls completely froze in 1911, and in 1912, people were allowed to walk across the ice bridges even though water was still flowing underneath. Unfortunately, the bridges broke and the practice halted. Congratulations Shari, and I’m going to figure out a bigger prize for your loyalty!