Thanks to the Digital Marketing Committee of the Association of National Advertisers for having me attend and give a presentation on mobile advertising and marketing yesterday. A copy of the presentation is available for your reading enjoyment right here: “Mobile Marketing or I Know Where You Will Be Next Summer & Other Mobile Marketing Myths.” (PDF)
UK ICO Issues Guidelines for Online Compliance – C is for Cookie
The Information Commissioner’s Office in the United Kingdom, in furtherance of the European Union’s “browser cookie” laws (EU Privacy and Communications Directive), has just published a set of guidelines that commercial enterprises will need to comply with when the new law goes into effect May 26. Because the laws’ requirements relate to technology and marketing, the intention of the new guidelines is to provide guidance on compliance for businesses.
For background, in case you haven’t been following this closely, in November 2009, the European Parliament amended the Directive of Privacy and Electronic Communications 2002/58/EC (sometimes referred to as the e-Privacy Directive) that mandated that websites give consumers the right to opt out of receiving cookies (in most cases by changing settings on their web browsers). The 2009 amendments reversed the requirement, setting the default as “opt in.” Consumers will have to give permission (informed consent) to a website in advance, to allow a cookie to be placed on their computer.
The UK ICO’s guidance makes it clear that all businesses, private and public, will be required to get consent from the user, in advance of having a browser cookie downloaded and installed on the consumer’s computer. In addition, the ICO has amended the UK Privacy and Electronic Communications Regulations to mandate that clear and thorough information – to ensure informed consent – is provided to end users, explaining why their information is being stored and how it will be used by the commercial enterprise. Expect to see consumer-directed information soon, alerting consumers as to what their rights are and what to expect as businesses comply with the new law and regulations.
As you probably know if you are a loyal and longstanding reader, Legal Bytes in 2009 reported that the major players in the online advertising industry had issued self-regulatory principles concerning online behavioral advertising (Advertising Industry Collaboration Releases Self-Regulatory Online Behavioral Advertising Principles), and intended to create an industry self-policing mechanism, as well as disclosures to consumers concerning the use of their personal information. The self-regulatory mechanisms in the United States – these being similar – have followed an “opt out” approach to consumer privacy and the control of personal information. For multinational and international businesses worried about compliance (and that includes all you web browser publishers) – well, it’s complicated.
As always, if you need guidance for your advertising, marketing, privacy or data protection efforts, call me, Joseph I. (“Joe”) Rosenbaum, or any of the Rimon attorneys with whom you regularly work. Our lawyers deal with these issues every day.
Do Not Track – Diving Deeper Into the Quicksand
Coming on the heels of a bill aimed at preventing children from being tracked, introduced by Rep. Ed Markey (D-Mass.) (see, Rep. Markey Releases a Kids Do Not Track Discussion Draft Bill): Today, Jay D. Rockefeller (D-W.Va.), Chair of the Commerce, Science & Transportation Committee in the U.S. Senate, introduced a Do Not Track Online bill that would empower the FTC to promulgate rules “that establish standards for the implementation of a mechanism by which an individual can simply and easily indicate whether the individual prefers to have personal information collected by providers of online services, including by providers of mobile applications and services . . . ”
A copy of the proposed legislation is available here for you to download and read Do Not Track Online Act of 2011 – Proposed Rockefeller Bill (PDF). Of course, if you need legal guidance, advice or representation as these bills are introduced and make their way through the legislative process, don’t hesitate to call us. We are here to help.
The Tip of the Iceberg – ‘Do Not Track’ Kids Bill Proposed
After several months of anticipation, Rep. Ed Markey (D-Mass.) released his Kids “Do Not Track” discussion draft bill. At face value, this bill appears to have a narrow focus of online behavioral activities toward children, which we normally define under the Children’s Online Privacy Protection Act (“COPPA”) as any individual younger than 13. However, such is not the case. This bill would amend COPPA to expand some marketing provisions to teens under age 18, and may, in effect, require better age screens, given teen savvy (and their propensity to lie about their age).
If enacted, this bill has the potential to create complications when marketing to the crucial college age and young adult market as more sophisticated age screens will require all to enter information that they might not want to share online.
To read the entire Rimon Alert and find out more, just check out Rep. Markey Releases a Kids Do Not Track Discussion Draft Bill.
Useless But Compelling Facts – May 2011
Now this time we are returning to some motion picture trivia and ask you to tell us in what motion picture and in what year, was the line “Play it again Sam” uttered and by whom – the name of the character will do!
If you know the complete and correct answer and if are first to send it to me, you’ll win. Send your answers directly to me at joseph.rosenbaum@rimonlaw.com.
Useless But Compelling Facts – February 2011 Answer
First, thanks to David A. Berman, who works right here in the Big Apple, as Information Technology Counsel, in the Office of the General Counsel of the New York City Department of Information Technology & Telecommunications, for correctly noting that on January 6, 1978, the first formal copyright notice appeared on the Carl Sandberg commemorative stamp issued by the United States Postal Service. Congratulations and well done.
FDA Examines Social Media: Food, Drugs and, Yes, Social Disease
Although it might not be obvious from the way the memorandum and discussion topic listing is phrased, the FDA Risk Communication Advisory Committee of the U.S. Food & Drug Administration is examining the use of social media, networking and new technology in assessing its Risk Communication protocols. The memorandum lists some publicly available background materials as reference points for the committee meeting yesterday (Background, May 5, 2011 Risk Communication Advisory Committee Meeting), and there is an associated list of discussion topics for the meeting (FDA Risk Communication Advisory Committee, Discussion Topics).
As we all appreciate, communication and dissemination of information about food and drugs affects the health and safety of literally millions of people. Preventing misinformation, as well as the timely availability of helpful, relevant and important information, is critical to any communication strategy. The Risk Communication Advisory Committee clearly appreciates the fact that technology (including social networking and mobile communication channels) can often quickly provide and make available accurate and helpful information to health and medical professionals, as well as to the population that might be at risk or individuals who need to know in any given situation – whether they are or are not on social networks or online. That said, like any other new technology or new application, implementing a system that optimizes the benefits of the use of technology, while minimizing the risks inherent in such adoption, is not a trivial or simple task.
If you are interested in following the proceedings, or have an interest in the use of social networking, cloud computing or any number of new technologies as they relate to legal, regulatory and compliance obligations and requirements, don’t hesitate to contact me or the Rimon attorney with whom you regularly work. We will make sure you get the help you need.
Dear WikiLeaks, Here We Come. Sincerely, The Wall Street Journal.
The Wall Street Journal just announced it has established a secure mechanism that allows “newsworthy” materials to be uploaded to its separate, but internal, secure servers. The new service, Safehouse, is a logical outgrowth of the age-old newsgathering function. That noted, one can only imagine everyone scratching their heads saying, “What took you so long?” considering the international notoriety garnered by the most visible recent leak-gathering organization, WikiLeaks.
Legal Bytes was certainly not alone in highlighting the WikiLeaks phenomenon (see IMHO – Wiki Wiki True to Its Meaning), so it’s a bit surprising that traditional news organizations had not previously moved aggressively into the digital technology age with their news-gathering activities. That said, kudos to the industry for opting to enter the digital age on the input side of the process and create competition in this arena, just as competition among journalists has existed for centuries.
The presumption is the WSJ upload process will be secure and apparently anonymous – the accumulation of anonymous and pseudonymous tips, leaks and leads has long been part of every investigative reporter’s and journalist’s job. Other news organizations are also rumored to be working on similar services, although not having done an investigation myself, others perhaps may have already launched. The WSJ service will reportedly provide encrypted digital file transmissions and, according to the Safehouse website, will seek to minimize the amount of technical information (read that to mean, traceable information) that the service receives on its servers.
Joseph I. (“Joe”) Rosenbaum is a partner in the New York office of Rimon, global chair of its Advertising Technology & Media law group – oh, and is the editor, publisher and often author of posts on Legal Bytes.
Celebrity Endorsements – The Fame, Blame or Shame Game
In January, Ace Metrix released a report questioning the relative value of celebrity endorsements (“Celebrity Advertisements: Exposing A Myth Of Advertising Effectiveness“). Just last month, a new study, co-sponsored by Ketchum and conducted by the Nielsen Company and BlogHer, took a look at social media trends among women and found online women were almost twice as likely to be influenced to consider a product based on a blogger they follow, rather than a pitch from a celebrity (2011 Social Media Matters Study).
Most of us understand that a few seconds of exposure on Oprah can mean the top of the best seller list, but celebrity steps and mis-steps can often pose, shall we say, “challenges,” for a brand. Celebrities such as Tiger Woods, Charlie Sheen, Lindsay Lohan and a host of others have seen their ups and downs. Correspondingly, advertising-endorsement considerations when dealing with any celebrity can be a mixed bag, depending on timing, relevance, image and a host of other factors—many outside the sponsor’s control. Sometimes neutral and other times negative, these recent studies suggest there are fewer success stories than one might otherwise assume.
Does this mean the end of celebrity endorsements? Probably not. But it may mean advertisers and agencies will become more selective and objective in evaluating the cost of promotions involving celebrities. Someone suggested celebrities should be compensated based on the “performance” of the advertising. First of all, that’s nothing new. However, in case you are wondering—and to throw in a quick legal byte—if a celebrity has a financial interest in the outcome of advertising involving that celebrity, yes, Legal Bytes has already noted that the FTC has an “app”etite for that: FTC (Revised) Endorsement Guides Go Into Effect.
The Advertising Technology & Media law practice group at Rimon has lawyers with decades of experience in working with advertisers and agencies handling matters involving celebrity endorsements—the good, the bad and, sometimes, the ugly. Let us know if you need us. We are happy to help.