“Don’t say you don’t have enough time. You have exactly the same number of hours per day that were given to Helen Keller, Pasteur, Michelangelo, Mother Teresa, Leonardo da Vinci, Thomas Jefferson, and Albert Einstein.”
Facebook Faces Yet Another Minor Case – Ads Add Added Woes
Facebook is facing another class-action, this time in Federal Court in Illinois, charging it used minors in its advertising. Although I haven’t done a search, there are at least two or three others – federal actions in California and New York and at least one state lawsuit filed in Southern California. In each of these cases, the allegations are essentially the same. Facebook takes user names, pictures and preferences, using the "Like" buttons, and then mashes or moshes (that word is the pits) them with paid sponsorship and advertising to target specific ads – sometimes referred to as "enhanced" or "premium" advertisements. The user’s name or likeness can be "pushed" to their Facebook friends – presumably people who the user has specifically permitted to be able to see such information; and also presumably by becoming a "friend," they, in turn, have manifested a desire or interest to know what the individual is doing, what she or he likes, opinions, where they are and what they are doing.
Aside from issues of free speech, voluntary opt-in and parent consent, especially where the individual is a minor and their name, image or likeness is used in an "ad" (and it’s not clear or settled that these are all "advertisements"), a question arises as to whether section 230 of the 1996 Communications Decency Act insulates Facebook from liability as a neutral communications platform that doesn’t control what each individual does or offers – so long as they act in accordance with Facebook’s terms and conditions. Some commentators point out, however, that in 2007, a Federal Appeals Court in California (9th Circuit Court of Appeals) held that Roommates.com was not immune when their users posted ads that were illegal under the Fair Housing Act (See, Fair Housing Council v. Roommates.com LLC [PDF]. That said, in the Roommates case, the ads were, to some extent, structured, and categories of content and information for the ads encouraged, if not solicited, populating the database of advertising for roommates using the website. Facebook may well argue that simply providing a "Like" button and making it available for use, is no different from a brand owner making a gadget or widget icon available should a user want to place it on their site. The "platform" – in this case Facebook – has no part in the user’s decision, nor is it offering to customize the user’s "Like" decision in any way that could be construed as editing or adding new content as a publisher.
One thing is very clear. Nothing is clear. Stay tuned!
Welcome to Disco via SMS – Google Finds Itself Dancing in Court
This post was written by Judith L. Harris, with assistance from Rimon Summer Interns James Duchesne and Linda Shim.
A new trend is quickly taking hold. In recent months, a sizeable number of class action lawsuits have been filed involving unsolicited text messages. A messaging system called “Short Message Service,” better known as “SMS“, allows individuals to receive text messages on mobile phones. Consumers unhappy with bulk, unsolicited SMS marketing messages are filing suit under the Telephone Consumer Protection Act 47 U.S.C. § 227 (“TCPA”) in alarming numbers. You can read a summary of the TCPA Rules [PDF], but to recap for these purposes, the TCPA prohibits any call from an automatic telephone dialing system to any mobile telephone service or any service for which the called party is charged. Since most mobile phone service plans charge on a message received/sent basis, the fact that SMS is subject to the TCPA’s prohibitions (just like land line phone calls), has caught many by surprise – including many of the most sophisticated operators in the mobile marketing space.
Lusskin v. Google [PDF] is one of the latest of these cases to be filed (Federal Court in California) and takes aim at Disco, launched by Google just this past March. In Lusskin, the plaintiffs are claiming that the Disco app gives Google the ability to “harvest all phone numbers” added by consumers so that Google “can independently send its own text message advertisements” promoting the Disco application. Individuals can use Disco to input names and mobile phone numbers (into groups); however, no permission or consent is required from someone whose name and number are added! When the group starts, Disco sends a message to members welcoming them, instructing them how the service works and how they can opt out. Once the groups are formed, messages can be sent from a single source, for a single charge, to all group members. Each member of the group receives the message and each can respond and, you guessed it, each response is sent to every other group member – an SMS mobile “chat room.”
Unbeknownst to Mr. Lusskin, he was added to one of these Disco groups and his mobile phone notified him of a text message from an unfamiliar number – the “welcome” message from Disco. Unfortunately, the “chat room” quickly turned into an angry and confused barrage of messages from the other unsuspecting group members responding to Disco’s first, unsolicited message. Messages poured in so rapidly and voluminously that Mr. Lusskin claims he was unable to use his mobile phone until the alleged 105+ SMS messages had all been received. Mr. Lusskin has filed as a class action, seeking relief for all persons who received the unsolicited initial welcoming text message from the Disco service. Mr. Lusskin also wants to include, as plaintiffs in the action, anyone who opted-out of the Disco service within 24 hours of receiving an unsolicited welcoming text message, or who was a member of a Disco group that was closed within 24 hours of its creation.
With a potential penalty of $500 in damages for each TCPA violation – each unsolicited message (and triple that number if a plaintiff can show the violation was willful or knowing) – no wonder consumers are seeking to use the TCPA to get some attention, or rather seeking to avoid getting unsolicited attention.
Are you in the mobile marketing arena? Need to understand the rules and regulations surrounding the medium? If you are an advertiser, marketer or sponsor involved in promotions, the message (content), we can help you keep abreast of Lusskin and its brethren as they seek to carve out a place under TCPA regulation. If you need help, contact Judith L. Harris, or me, Joe Rosenbaum, or any of the Rimon attorneys with whom you regularly work.
Albert Einstein (1879-1955)
“Everyone is a genius. But if you judge a fish on its ability to climb a tree, it will live its whole life believing it is stupid.”
The Rise of Digital Outdoor Billboards – Signs of the Times
Although it might be intuitively obvious when you think about it, most people have simply overlooked billboards as a growing advertising medium. Did I say “growing”? Well yes, I did. More and more highways and roads are being built. More vehicles are on the road, fuel costs and mass transit subsidies notwithstanding. Stuck in traffic? Sitting on a commuter rail or waiting at the shelter for the next public bus to whisk you off to work? Guess what. You’re staring at an advertisement. Increasingly, outdoor space is being used to serve multiple advertisements – tri-fold slat advertising, roll-away-screen advertising. But in case you haven’t noticed, digital billboards are beginning to pop up everywhere – New York City has them on the sides of buses and the tops of taxi cabs.
Makes sense. As consumers have taken more control over the advertising they see on the devices they use, what better place to capture attention than on a billboard you are simply staring at while you are waiting, traveling or driving to your next destination. So yes, digital billboards are growing even faster (see, for example, an article posted by the BBC news service in the UK entitled, Outdoor Advertising Goes Digital). Not only that, but digital billboards provide the ability to alter messages at will and can be interactive – with QR Codes, Bluetooth sensors, RFID tags, SMS Text message promotions (to see some examples, take a look at the slides from my recent presentation at the 10th Annual SME Digital Forum – Rosenbaum Presentation).
Legal issues? Well first, there is the intrinsically public nature of billboard advertising generally – which means you have to be more sensitive to standards, community norms and specific regulations applicable to categories of advertising (e.g., municipal ordinances regarding tobacco advertising near schools, etc.). Plug number 1 – you should always consult your legal advisors when reviewing billboard advertising. For example, could this have been approved? The disclosures are there, after all!
OK, just kidding. But that said, a new issue has arisen regarding the safety of digital advertising for drivers. Flashing lights, moving images, animated sequences can be distracting. Well the debate isn’t all that new. (Digital Billboards Spark Safety Debate (2007); Digital billboards: Good business or danger to drivers? (2010)). Nor is it limited to the United States (e.g., Do digital billboards add to danger on UAE roads? (2010)).
Perhaps the increased number of digital billboards is raising concern that every roadway, bus shelter and available space outdoors will be consumed with Times Square-like illumination all the time. So far, studies report that digital outdoor advertising is safe. For example, see the March report of Watchfire Digital Outdoor entitled, “Digital Billboard Safety Confirmed“. The safety issue likely will continue to rear its head periodically, along with questions about propriety of certain types of ads served on digital billboards, and I assume the inevitable claim that the lights are keeping everyone in the neighborhood up at night – although on a long drive late at night, perhaps flashing lights are a good thing.
In any event, outdoor billboard advertising isn’t dead. It’s being transformed, along with all other forms of advertising and marketing. Need help from lawyers who understand both advertising and digital transformation? Rimon is the place to look. Feel free to call me, Joseph I. (“Joe”) Rosenbaum, or any of the Rimon attorneys with whom you regularly work.
FTC Proposes to Update Dot Com Disclosure Guide to Online Advertising
"Dot Com Disclosures" [PDF], the Federal Trade Commission’s (FTC) guidance for online advertisers, was issued in May 2000.
Yesterday, the FTC issued an announcement [FTC Staff Invites Comments Regarding "Dot Com Disclosure" Business Guidance Publication [PDF]] asking for comments and suggestions from interested parties regarding updates to the online advertising guidance, based on the fact that when Dot Com Disclosure was first released, social media, mobile marketing, "apps" and similar innovative advertising and content distribution mechanisms either did not exist, or were in their infancy.
The online world and the online and mobile world of advertising has changed radically and continues to evolve dynamically since 2000, and if you want your comments to be considered, the FTC must receive them by July 11, 2011. Comments will generally become matters of public record at http://www.ftc.gov/os/publiccomments.shtm.
Are you in the online or mobile advertising industry? Do you create, use, share or obtain data from "apps"? Do you want your views to be considered – whether as part of an industry association or individually, or both? Need help crafting your submissions and comments?
If you need help from lawyers with decades of experience, Rimon is the place to look. Feel free to call me, Joseph I. ("Joe") Rosenbaum, or any of the lawyers within the Advertising Technology & Media law practice group, or any of the Rimon attorneys with whom you regularly work. We will be happy to help you.
10th Annual SME Digital Forum – Rosenbaum Presentation
As we’ve done in the past, Legal Bytes is happy to post, in addition to charts and references and links to valuable sources of information, a copy of the presentation given by Joseph I. (“Joe”) Rosenbaum at the 10th Annual SME Digital Forum hosted by La Asociación de Ejecutivos de Ventas y Mercadeo de Puerto Rico (SME) (Association of Sales and Marketing Executives of Puerto Rico).
The presentation, in PDF format, can be read and downloaded right here, “Social and Mobile and Clouds, Oh My! The Brave New World of Marketing in the Digital Age,” with only the audio/visual clips and commercials having been omitted because of their file size. Of course, if you want further information about the presentation or any of the materials covered or referred to, please don’t hesitate to contact Joe directly at joseph.rosenbaum@rimonlaw.com.
Twitter Buys TweetDeck
Although unconfirmed directly, CNN and CNET are reporting that Twitter has acquired London-based TweetDeck for a reported $40 million. TweetDeck is a desktop application that uses Adobe Air and is attempting to create a user interface in columnar form to entice users to display and ostensibly manage their social media connections.
SME Puerto Rico Hosts the 10th SME Digital Forum
Joseph I. ("Joe") Rosenbaum has been invited to speak at the prestigious SME Digital Forum hosted by La Asociación de Ejecutivos de Ventas y Mercadeo de Puerto Rico (SME) (Association of Sales and Marketing Executives of Puerto Rico).
This 10th edition of the Forum will be held Wednesday, May 25, and includes the presentation of the "2011 SME Digital & Mobile Behavioral Study" and the "Digital SME Awards." From what we understand, this is the first time the Forum has been expanded to include concurrent seminars and lectures on topics such as legal, digital marketing and emerging trends. An honor to be invited; a privilege to attend; an exciting opportunity to learn and network with other professionals. See you there!
China Announces State Internet Information Office
This post was written by Joseph I. Rosenbaum, Frederick H. Lah, Zack Dong and Amy S. Mushahwar.
On May 4, 2011, the Chinese government announced it was establishing the State Internet Information Office, an office dedicated to managing Internet information. According to the announcement, this office will be responsible for directing, coordinating, and supervising online content management. The office will also have enforcement authority over those in violation of China’s laws and regulations (see, for example, China sets up office for Internet information management). While there are reports that many believe the purpose of the new office will be to censor political and social dissidents (see, China Creates New Agency for Patrolling the Internet, the office may also have a key role in thwarting illegal spamming and other dubious data practices.
Further, many see the establishment of this office as another step forward for the Chinese in terms of establishing their own data-protection regime. China has long been considered as lagging behind other countries in terms of their data-protection standards (quite possibly by design), and with no comprehensive data privacy law, businesses have had little guidance concerning the handling of personal data. China published the draft Personal Information Protection Measures in 2005, but those Measures have not yet been adopted and little progress seems to have been made since then. However, in February 2011, China issued a draft of the “Information Security Technology – Guide of Personal Information Protection” (“Guidelines”) to address the lack of guidance and standards surrounding online information practices in China. The Guidelines include standards with respect to collecting, processing, and using data, and there are provisions related to the transfer of data to third parties. While the Guidelines are technically non-binding, they still provide important guidance for businesses in China on how to protect the online information of China’s citizens. With the Guidelines still under review, Rimon lawyers will continue to monitor developments to see what form the Guidelines will take in the future.
If you have or are considering a presence in China, you need to know and be attentive to many things, if you are to succeed in the Chinese marketplace. That’s why you should contact Frederick H. Lah in our Princeton office, Zack Dong in our Beijing office, Amy S. Mushahwar in our Washington, D.C., office, me, or the Rimon lawyer with whom you regularly work. When you need legal guidance or have questions about regulations that apply online, on the Web, and across the Internet, in almost any part of the world, let us know. We are here to help.