Insights at the intersection of digital and mobile technology, innovation and the law
Legal Bytes will soon morph** and undergo a transformation***
Watch For It
* Metamorphosis: A noticeable change in character, appearance, function or condition.
** Morph: To undergo dramatic change in a seamless and barely noticeable fashion.
*** Transformation: A marked change in appearance or character, especially for the better.
This is the time of year when many of you are celebrating holidays; spending time with family, friends and loved ones; bidding farewell to 2015; and looking forward to the New Year – 2016. A time when many of us pause to reflect on what has happened in the past year and wonder what the new year will bring. There are people who have touched us and some with whom we’ve gotten closer; some we have missed and many with whom we resolve to try and be better in the new year; and perhaps a few we might like to forget. We pause to remember those who are no longer with us and appreciate that by remembering them, we keep their spirit – all we have learned from them and all they have meant to us – alive. As 2015 comes to an end, we reflect on friendships and relationships, events and experiences. Many will use the opportunity to thank those who have helped us in tough times and those with whom we cherish sharing the good times.
For me it has always been a time to resolve to keep doing the good things I’ve done and to be better about trying to do those things I should have done. This time of year gives me an excuse to say thank you and express appreciation to everyone who has enriched my life. If you are reading this, you are part of my audience – part of the fabric of my professional life and, like the threads of that fabric, you have helped me weave the patterns and textures you read in these digital pages and the thoughts and sensitivities that become imprinted in my mind. I am grateful for your readership and in some cases, your friendship. I am always appreciative when you take a moment to read and perhaps gain some insight, while also being a little entertained.
So let me take this the opportunity to wish each of you, your families, friends, loved ones and yes, even an enemy or two, a beautiful and joyous holiday season and a healthy, happy new year, filled with wonder and magic, health and joy, challenge and opportunity, and prosperity and success. I especially want to thank a few people at Rimon like Kaitlin Southron, Lois Thomson and Rebecca Blaw who make this blog happen. These are the people you don’t see, but I do! They make Legal Bytes come alive. They are always amazing, consistently awesome and unbelievable under pressure. There are insufficient words to express my gratitude and appreciation – especially when they get my email that says “can we please post this ASAP.” Thank you. You make it look easy, you make me look good. I could not do this without you!
Continue reading “Thank You for 2015 – Best Wishes for 2016”
“Ethics is knowing the difference between what you have a right to do and what is right to do.”
Potter Stewart (1915–1985) was an Associate Justice of the United States Supreme Court, who made major contributions to criminal justice reforms, civil rights, equal access to the courts and Fourth Amendment jurisprudence. He is probably most well-known for his statement that while hard-core pornography is hard to define, “I know it when I see it” – part of his concurring opinion in the censorship case of Jacobellis v. Ohio (1964).
“. . . when you talk you are only repeating what you already know – but if you listen you may learn something.”
Joseph Patrick McEvoy (1897–1958), sometimes credited as John P. McEvoy, was an American writer whose stories were published in the early 1900s. Many were subsequently adapted into movies. McEvoy is probably most well-known for the popular newspaper comic strip Dixie Dugan, based on Show Girl. This quote was taken from his article “Passing the hot potato,” published in The Rotarian in May 1947.
“I really didn’t say everything I said.”
Lawrence Peter “Yogi” Berra (1925 –2015) passed away this past Tuesday at the age of 90. An 18-time All-Star Professional Baseball Catcher, he appeared in 14 World Series as a New York Yankee, winning 10 of them. He was elected to the Baseball Hall of Fame in 1972, is one of only 5 players to have won the American League Most Valuable Player Award three times and is widely regarded as one of the greatest catchers in baseball history. He also gained a reputation for his humorous and often paradoxical quotes.
[Picture Caption: “You wouldn’t have won if we’d beaten you.”]
“I know you think you understand what you thought I said but I’m not sure you realize that what you heard is not what I meant.”
Alan Greenspan, an American economist, former Chairman of the Federal Reserve of the United States (served from 1987 to 2006)
According to the FTC: “The basic consumer protection statute enforced by the Commission is Section 5(a) of the FTC Act, which provides that “unfair or deceptive acts or practices in or affecting commerce … are … declared unlawful.” (15 U.S.C. Sec. 45(a)(1)). Safe Web amended Sec. 5(a) “unfair or deceptive acts or practices” to include such acts or practices involving foreign commerce that cause or are likely to cause reasonably foreseeable injury within the United States or involve material conduct occurring within the United States.”
Given that view and the FTC’s traditionally robust enforcement activities in areas of false, deceptive or misleading advertising, it is not surprising that most advertising, marketing and promotional professionals are familiar with section 5.
However, of lesser fame are pronouncements by the FTC in what is “unfair” competition – another segment of the authority vested in the Federal Trade Commission by section 5 of the FTC Act. This is the lesser-known part of section 5 that gives the FTC the authority to take action when it determines that “unfair methods of competition in or affecting commerce” may be deemed illegal – essentially an antitrust concept.
For the first time, the FTC, this past Thursday (August 13, 2015) released a single page “Statement of Enforcement Principles Regarding ‘Unfair Methods of Competition’ Under Section 5 of the FTC Act“. Perhaps indicative of the challenges and internal discussions among the regulators themselves, the principles are short and, to many, appear to be a re-statement of what has already been the enforcement practices of the FTC in recent years concerning this provision of the Act.
The Commission announced it will follow three basic principles. In short, enforcement will be considered: (1) Using the same underlying principles that guide antitrust law – protection of consumer welfare; (2) if the practice causes, or is likely to cause, harm to competition or the competitive process, without any counter-balancing justification; and (3) if enforcement under the Sherman or Clayton Act is insufficient and independent action is considered necessary.
If you want to know more or have questions, please contact me or any Rimon attorney with whom you work.
Yesterday (July 6, 2015), the Social Media Law & Policy Report™ published by Bloomberg BNA posted my article entitled: “Beyond Legal: What You Should Know About Social Media Promotions.”
The article highlights some of the additional considerations advertising and marketing professionals (and their lawyers) need to take into account when conducting sweepstakes, contests and promotional activities on social media platforms.
You can read the article directly at “Beyond Legal: What You Should Know About Social Media Promotions.” , or download a copy for your personal use here: Rosenbaum – Beyond Legal (BNA Reprint).
Do you need to know more about advertising, marketing or promotions operating in the world of social media or on mobile platforms? Our legal team has broad and deep experience in virtually every aspect of advertising and marketing, traditional, digital, virtual on this world or in others, or any of the lawyers with whom you regularly work, at Rimon.
The Federal Trade Commission has just updated its version of Frequently Asked Questions, or FAQs, that relate to the “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that went into effect December 1, 2009. You can find the updated FTC website page right here “What People Are Asking.”
If you are a loyal Legal Bytes’ reader, you know we have been following this since as early as November 2008, when we posted Endorsements & Testimonials – FTC Broom Proposes Some Sweeping Changes, and numerous updates and informational pieces have graced these pages since then (now when we say “pages,” we mean web pages). You can refer back to any or all of them, or you can check out any you may have missed right here: FTC Testimonial and Endorsement Guides Stimulate Industry Comment (March 2009); a presentation given at the University of Limerick on the subject entitled “Trust Me, I’m a Satisfied Customer: Testimonials & Endorsements in the United States,” which you can download; Ghostwriters: Medical Research or Paid Endorsers (and are they mutually exclusive?) and Rights of Publicity – Wake Up and Smell the Coffee! (both in August 2009); and FTC Releases Updated Endorsement & Testimonial Guidelines and Rimon Analysis of the New FTC Endorsement and Testimonial Guidelines (both in October 2009).
In December 2009, Legal Bytes posted another thoughtful and practical analysis FTC (Revised) Endorsement Guides Go Into Effect, written by John P. Feldman, so you know Rimon is following and keeping up with developments as they occur.
So, if you want to know more or have questions, please do not hesitate to contact me, or any Rimon attorney with whom you regularly work.
On April 27, I had the distinct privilege of presenting a session devoted to the legal implications of social media and mobile technology to the leadership of AHAA, The Voice of Hispanic Marketing at their 2015 Annual Conference.
You can read or download a copy of my presentation, “The Legal Implications of Social Media and Mobile Technology,” which focuses on some traditional advertising basics and some current issues that are “hot” in the brave new world of digital advertising and marketing. Of course, there are so many implications in this dynamic and evolving arena, that no presentation could ever hope to cover them all – or even remain current and timely for very long.
So if you are in the business and need guidance, counsel, and support from a legal team with broad and deep experience in virtually every aspect of advertising and marketing – traditional or digital, anywhere in the Universe – don’t hesitate to contact me, Joe Rosenbaum or any of the lawyers with whom you regularly work at Rimon.