Online marketing continues to evolve and affiliate marketing can be a great method of building brand awareness. Online marketers need to stay ahead of legal and regulatory compliance trends. This article looks at recent Federal Trade Commission (“FTC,” “Commission,” or “agency”) activity that impacts online marketing.
Given the lack of a comprehensive federal regulatory scheme, and the increasing awareness of deceptive marketing practices, it is not surprising that the FTC has ramped up enforcement efforts against entities not covered by existing, industry-specific federal regulations over the last decade. Notably, one company has defended itself against the FTC by challenging the FTC’s authority to pursue such broad enforcement.
The widely-watched case of FTC v. Wyndham Worldwide Corp is not just about Cybersecurity.
The Federal Trade Commission (FTC) has just won the first major round of its fight with Wyndham Hotels over data security. However, the importance of the case has more to do with the FTC’s jurisdiction, challenged when Wyndham moved to dismiss the FTC’s case. Affirming the FTC’s broad jurisdiction, the federal judge overseeing the controversy noted that the case highlights “a variety of thorny legal issues that Congress and the courts will continue to grapple with for the foreseeable future.”
Affiliate Marketing: A Roadmap for Compliance: Text Message Marketing
The Commission is cracking down on affiliate marketers that allegedly bombard consumers with unwanted text messages in an effort to steer these consumers towards deceptive websites falsely promising “free” gift cards.
For example, in eight different complaints filed in courts around the United States, the FTC charged 29 defendants with collectively sending more than 180 million unwanted text messages to consumers, many of whom had to pay for receiving the texts. The messages promised consumers free gifts or prizes, including gift cards worth $1,000 to major retailers such as Best Buy, Walmart and Target.
By now, many in the Affiliate Marketing industry are familiar with the Legacy Learning Systems case. In March, 2011 the FTC settled charges against Legacy — which sells instructional DVDs — that Legacy represented, directly or indirectly, expressly or by implication, reviews of their products were endorsements reflecting the opinions of ordinary consumers or independent reviewers, when many of the favorable endorsements were posted by affiliate marketers who received a commission from Legacy for sales they generated.
Regardless of the form of affiliate marketing – email campaigns or text message campaigns – there are a couple key take-aways here.
First, identify and disclose a material connection between a product user or endorser and any other party involved in promoting the product. A “material connection” is a relationship that affects the credibility of an endorsement and wouldn’t be reasonably expected by consumers. See our article about complying with the endorsement guides here.
Second, set up and maintain a system to monitor and review affiliates’ representations and disclosures to ensure compliance. For example, Legacy looked at its top 50 revenue-generating affiliates at least once a month, visiting their sites to review their representations and disclosures. It has to be done in a way designed not to disclose to the affiliates that they’re being monitored.
Third, understand he requirements for conducting legally-compliant text message marketing. The Telephone Consumer Protection Act (TCPA) makes it unlawful to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a . . . cellular telephone service … or any service for which the called party is charged for the call. The prohibition on calls to cell phones applies to text messaging.
Tagged: Advertising, Affilaites, Affiliate marketing, Business, compliance, Federal Trade Commission, Legal, regulation, Social media
September 19, 2013
A presentation on what goes into creating original designs and how these differ from copycats.
WHERE: Decoration & Design Building, J. Robert Scott Showroom, Suite 220
WHEN: Wednesday, October 2,2013 !2 p.m.
WHAT: From film to fashion, creative industries are taking steps to protect and promote original work. Designers and manufacturers need to know what steps they can take to protect their designs, their businesses, and their profits. The discussion will address issues related to how to protect original design (copyright & design patent) and the manufacturers (trademark, unfair competition).
INTERIORS Magazine Editorial Director Michael Wollaeger
J. Robert Scott Founder Sally Sirkin Lewis
Designer Laura Kirar [Web Site]
Intellectual Property lawyer David Adler
Showroom reception to follow.
Download the full Fall Decoration & Design Building Market Brochure Here.
Tagged: Advertising, Business, Copyright, creative content, Design, Federal Trade Commission, Intellectual property, Law, Legal, Marketing, Trademark
On February 22, 2013, the FTC announced a settlement with HTC America over charges that HTC failed to use adequate “security by design” in millions of consumer mobile devices. As a result, the company is required to patch vulnerabilities on the devices which include #Smartphones and #Tablets. The settlement, the first action involving a mobile device manufacturer and the new “Privacy By Design” guidelines, sheds some light on the legal risks for mobile device manufacturers and, to some extent, mobile application developers.
The FTC alleged that HTC failed to take reasonable steps to secure the software it developed for its smartphones and tablet computers, introducing security flaws that placed sensitive information about millions of consumers at risk. The resulting vulnerabilities posed risks to sensitive functionality, including the possibility that malware could send text messages, record audio, and install additional malware onto a consumer’s device.
Here are four key take-aways for mobile device manufacturers and application developers from the FTC’s complaint:
- provide your engineering (programming) staff with security training
- review or test your software on mobile devices for potential security vulnerabilities
- follow well-known and commonly accepted secure coding practices
- establish a process for receiving and addressing vulnerability reports from third parties
Smartphones and tablets are powerful, popular, and continue to find their ways into our personal and business lives. New mobile apps hit the market each day. In this fast-moving era of entrepreneurship and creativity, mobile device and app developers need to keep up with evolving privacy and security. Apps and mobile devices that tap into consumer data — including contact information, photos, and location to name a few — pose a heightened risk to digital snoops, data breaches, and real-world thieves.
Please contact us if you are interested in learning how to evaluate your mobile security and privacy risk or to help develop a “Privacy By Design” approach mobile app security.
Please comment, tweet and forward!
- FTC moves against mobile device makers over security (networkworld.com)
- AT&T to usher in split-personality mobile devices (reviews.cnet.com)
Tagged: "Privacy By Design" guidelines, developers, device, Federal Trade Commission, FTC, HTC, HTC Corporation, legal risks, manufacturer, Mobile, mobile application, Mobile device, Smartphone, Tablet computer, Vulnerability (computing)
May 10, 2012
By Talya Minsberg A new Israeli law prohibits fashion media and advertising from using Photoshop or models who fall below the World Health Organization’s standard for malnutrition. When a 14-year-old girl delivered a 25,000-signature petition this week to Seventeen asking them to curb their use of Photoshop, the magazine issued a press statement that congratulated the girl on her ambition but was conspicuously silent on changing their editorial practices.
Huffington Post (satire)
So, culturally and historically, the reason women care so much about fashion is that until very recently, we weren’t allowed professional, legal or vocal ways of expressing ourselves. Fashion was a way of articulating our feelings about ourselves.
Small Aussie fashion label turns George Lucas legal threat into ‘Star …
Dallas News Small Aussie fashion label turns George Lucas legal threat into ‘Star Wars‘ clothing deal.
AsianFashionLaw | Page 5
Fashion lawyers are legal experts too. Sometimes I feel as though people think I am in design studios all day twiddling my thumbs as I look at models wearing …
Adidas-India’s ex-MD slaps legal notice on company – Fashion United
The Adidas-saga in India seems to be taking a different turn. – Fashion India News, Network, Business Community, fashion industry, international, platform for …
Tagged: Adobe Photoshop, Advertising, authorship, Business, Copyright, creative content, Defamation, entertainment, entrepreneurs, Facebook, Fashion, Federal Trade Commission, George Lucas, India News, Intellectual property, Internet Marketing, Israel, Law, lawsuit, Legal, legislation, Marketing and Advertising, Metropolitan Museum of Art, Photoshop, Services, Social media, technology, United States Patent and Trademark Office, World Health Organization
April 4, 2012
By William Jackson
A White House official says that the administration will call on Congress to pass legislation to put the force of law behind a proposed Consumer Privacy Bill of Rights. The administration unveiled the principles in February.
Atlanta Journal Constitution (blog)
In the long run, will changing expectations of privacy in an electronic world begun to undermine the constitutional protections granted to all Americans in the Bill of Rights?
The test of commitment is to translate high-minded principles like the Consumer Privacy Bill of Rights into real legislative language.” The White House issued its privacy proposal, Consumer Data Privacy in a Networked World.
“Some have argued that we’ll need something new—that the existing Bill of Rights doesn’t protect mental privacy adequately enough in the face of these emerging technologies.”
Business 2 Community
It did get a bit of spotlight, but when President Obama recently proposed a “Consumer Privacy Bill of Rights”, as not just Americans, but consumers and consistent users of technology, we definitely should’ve taken greater notice.
Well, he’s certainly quoted the Bill of Rights accurately, as we should expect. But sometimes I think things can be oversimplified. This is a complex question, but I think Joyner’s argument may come up short both on the particulars of the Florence case.
Also last week, the Federal Trade Commission issued its final report for how companies should handle consumer privacy, which includes the aforementioned Do Not Track feature. This had previously been mentioned in the Consumer Privacy Bill of Rights.
Caribbean Media Vision
This call for legislation comes a month after the Obama administration outlined their “Consumer Privacy Bill of Rights” a document that details a high expectation of transparency on the part of corporations and their data mining efforts.
World Socialist Web Site
… by the so-called “swing” member of the court, Justice Anthony Kennedy, and joined by the four-member right-wing bloc, is the latest in a series of reactionary rulings broadening the police powers of the state and trampling on the Bill of Rights.
Tagged: Atlanta Journal Constitution, Consumer Privacy Bill of Rights, Do not track header, Federal Trade Commission, Internet privacy, Privacy, Sacramento Bee, White House
March 27, 2012
- Calls for voluntary online Do Not Track system
- Calls on Congress to pass general privacy legislation
- White House has called for privacy bill of rights
In 2011, the Federal Trade Commission slapped Google and Facebook for violating their own privacy policies, forcing both to submit to years of privacy audits. In February, 2012 , the Obama administration issued a blueprint for a “Consumer Privacy Bill of Rights.” The FTC, the main government agency responsible for protecting privacy, called Monday for legislation that would give consumers access to information collected about them by data brokers similar to the rights they now have to review information amassed by credit reporting agencies.
The FTC’s report comes a little over a month after the White House released its privacy bill of rights that called on companies to be more transparent about privacy and grant consumers greater access to their data but that stopped short of backing an explicit “do not track” rule. The Federal Trade Commission’s 57-page privacy report consisted of a set of “best practices” that the Internet industry is expected to follow — or face sanctions. The report mirrors many of the provisions of the “Consumer Privacy Bill of Rights” released by the White House and represents the first serious efforts at striking a balance in online consumer privacy protection related to web usage.
Critics contend the framework is not as extensive as the White House Consumer Privacy Bill of Rights announced back in February. That already made provision for “Do Not Track” technology, with Google, Yahoo!, Microsoft and AOL – together responsible for almost 90-percent of behavioral advertising – already opting in. Privacy advocates have slammed the new” guidelines, arguing that the proposed system for ensuring online data security fails to take advantage of existing authority and relies too much on self-regulation of the online industry. The new framework “mistakenly endorses self-regulation and ‘notice and choice,’” the Electronic Privacy Information Center claims, ”and fails to explain why it has not used its current Section 5 authority to better safeguard the interests of consumers.”
Tagged: AOL, Do not track header, Electronic Privacy Information Center, Facebook, Federal Trade Commission, Google+, Privacy, White House