Social Media Advertising Tools And User Consent: What Are The Requirements?

Perhaps you’ve seen them, those television and radio ads that talk about the “creepy” nature of some adverting on the Internet that follows consumers across their social media. According to Pew Research, most Americans believe their online activities are being tracked and monitored. 

The fact is, most companies can and do share data with social media platforms to ensure targeted advertising reaches receptive audiences. As more tools become available and the variety of data sources grows globally, platforms and advertisers are re-examining their rights and obligations when it comes to something as simple as matching customers’ email addresses with their Facebook accounts. 

Facebook’s Customer List Custom Audiences (“Custom Audiences”) tool is one such tool that has the potential to expand an advertiser’s liability for unauthorized use of customer data. For EU customers, a German Data Protection Authority ruling requires a individual’s explicit consent to such sharing.

The Facebook Custom Audiences tool enables advertisers to create targeted advertisements to Facebook users by combining Facebook data with the advertiser’s data such as email addresses and phone numbers. To use marketing tool the advertiser must comply with the consent and privacy expectations of individuals who have provided email addresses.

Consent to Use Email Addresses

While the use and disclosure of email addresses is regulated in some countries, the U.S. does not have a uniform data privacy protection scheme. U.S. privacy rights are protected through a patchwork of laws addressed to specific types of harm, such as unauthorized access and disclosure of financial (Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681) or healthcare-related (Health Insurance Portability and Accountability Act of 1996 (HIPAA) 42 U.S.C. § 1320d–2) data. While the CAN SPAM Act (15. U.S.C. § 7701 et seq.) specifically regulates email, the Act excludes communications based on a previously existing relationship. 

Importantly, for most purposes, permission of the e-mail recipient is not required. However, messages MUST contain a mechanism to request to opt-out of future email messages. If email addresses are acquired from third-party sources, such as marketing databases or social media, ensure users are given reasonable notice and choice about the use of such data.

The Federal Trade Commission endorses a market-style model of ensuring the fair use of information that allows individuals to participate in decisions on the disclosure and use of their personal information. As articulated by the FTC, the elements of this approach are notice, choice, access, security and enforcement.

Contractual Requirements of Facebook Custom Audiences 

In order to use the Custom Audiences tool, the advertiser must agree to additional terms and conditions. Facebook’s Custom Audiences terms require that the advertiser have both “all necessary rights and permissions” as well as a lawful basis to disclose and use the email addresses “in compliance with all applicable laws, regulations, and industry guidelines.” 

Recommendations

Review your Privacy Policy, Website Terms & Conditions, and membership/subscription applications to confirm the existence of a clear mechanism to opt-out of future email messages. If email addresses are acquired from third-party sources, such as marketing databases or social media, review data gathering practices, review scope of permissions granted to the sources of data and ensure users are given reasonable notice and choice about the use of such data.

What Is Cyberlaw?

On November 13, I had the honor of providing a lecture on Cyberlaw to students at the Boston College Law School. Virtually, of course. I had been asked to talk about trends in Cyberlaw with a specific focus on issues related to intellectual property.

So what is Cyberlaw? Simply put, it is the “Rules of the Road” for the “information superhighway.” Cyber law is the law that governs rights, obligations and remedies of people and transactions conducted over global computer networks.

In a year that has seen hyperbolic growth in technology, commerce, and communications, this topic couldn’t be more timely. In order to frame the discussion, the scope featured a discussion of the Three Cs of Cyberlaw: Connections, Content and Commerce.

The first part of the discussion centered around Content, or issues related to Copyright, such as Free Speech/First Amendment CDA Sec. 230, Creative Works, Media and Entertainment, UGC and the DMCA.

The Second part of the discussion centered around Commerce or issues related to Trademarks, marketing and branding, such as: Marketing/Advertising, Domain NamesCyberpiracy prevention, Keyword Advertising and Social Advertising.

The third and final part of the discussion focused on Connections and Communications and issues related to Personal Data, Stalking, Harassment, Surveillance and Sovereignty, issues around Social Media Freedom of Speech v. Freedom of Reach, and the latest developments around Political speech online.

The lecture closed with a Q&A focused primarily on Navigating Law School and Professional Practice.

COVID-19 is changing consumer behavior in important and probably permanent ways.

COVID-19 is changing consumer behavior in important and probably permanent ways. This is why marketers should take notice.

Sparked by the coronavirus pandemic, consumer and business e-commerce transactions accelerated the ongoing shift toward online commerce. This enables even more marketing opportunities that create real time connections with customers. From pink ribbons to Product Red, social feeds are full of calls to support those in need. In this way, online cause marketing can drive “consumption philanthropy” replacing mindless buying with virtuous action. Tying cause-worthy buying with the latest ecommerce boom creates new opportunities for marketers.

However, before turning your blog, social media accounts, or website into a funnel to raise money for First Responders, it is important to understand that all states have laws that govern charitable solicitations. Running promotions and undertaking solicitations for charities means that unless the business itself is set up as a tax exempt charitable entity, these activities are considered “Commercial co-ventures.” Generally this is a person (or business) who, for profit, is primarily engaged in commerce other than in connection with soliciting for charities and who conducts a charitable sales promotion.

In Illinois, Sec.3. (b) of the Solicitation for Charity Act provides the following persons shall not be required to register with the Attorney General: 3. “Persons requesting any contributions for the … benefit of any individual, specified by name at the time of the solicitation, if the contributions collected are turned over to the named beneficiary, first deducting reasonable expenses for costs of banquets, or social gatherings, if any, provided all fund raising functions are carried on by persons who are unpaid, directly or indirectly, for such services.” Emphasis mine.

Even if you are not raising money for a good cause, consider using disclaimer s to let your audience know product and company names are trademarks of the respective owners and does not imply any affiliation with or endorsement by them.

Is It Necessary To Register A Design Copyright?

A client was asking “is it necessary to fill out all the paperwork to register a design even though the law says you already own it?”

It’s a good question. Technically, under the Copyright Act as amended in 1976, the author (creator) of a work owns the copyright. The 1976 Act states that copyright protection extends to original works that are fixed in a tangible medium of expression. This wording broadens the scope of federal statutory copyright protection from the previous “publication” standard to a “fixation” standard. No further action is necessary. Under previous versions of the law, there were publication requirements to perfect ownership.

Under section 102 of the Act, copyright protection extends to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

Until the ’76 statutory revision to U.S. copyright law the Copyright Act of 1909 governed, under which federal copyright protection attached only when those works were 1) published and 2) had a notice of copyright affixed. In addition, state copyright law governed protection for unpublished works creating inconsistencies.

Despite the successful streamlining and efficiency of rights creation and enforcement, some challenges and inconsistencies remained. Most noticeably, there had been spit in the federal courts. Some courts required the certificate to litigate, some courts only required proof that an application had been filed.

Last year, the US Supreme Court ruled that in order for a copyright owner to enforce its rights against infringers, the copyright owner must have a registration certificate for the works that are being infringed.

In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. ___ (2019) (PDF here) decided March 4, 2019, the US Supreme Court resolved this split among courts around the country by holding that the mere filing of a copyright application is not sufficient to allow a copyright owner to file suit – actual approval of a copyright application by the United States Copyright Office is required before suit can be filed. Approval comes only in the form of a Registration Certificate.

Returning to the client’s question, while it is true that the Copyright Act says  one owns the copyright in a work when it is fixed, it is no longer true that one can ignore the registration requirements. Yes, one does not have to do anything formal to own a copyright in a work one creates. However, one cannot enforce those rights without the registration certificate in hand. For all practical purposes, there is no reason not to register the copyright in any design, pattern or other distinctive element you create. The fees are relatively low ($65.00) and completing/filing the form can be done electronically.

A word to the wise, like all areas of Intellectual Property, there are nuances that are easily overlooked by the uninitiated. You should always consult with an experienced copyright lawyer when evaluating any individual situation.

Does My Business Need A “Button” To Comply With The CCPA’s Do Not Sell Rule?

The California Consumer Privacy Act (“CCPA”) was enacted in early 2018 and went into effect in 2020. Among many concerns about the ability of small businesses to comply with obligations imposed by the CCPA is the requirement that a company allow Californians to access the information held about them, or, in some situations, request that the information that they provided to a company be deleted.  Your clients may be asking you about the CCPA.  While each business should evaluate the law in terms of its own specific situation, here are some general guidelines to start the process.

Does the CCPA Apply to My Business?

If your business satisfies one or more of the following, then the CCPA applies:

(i) annual gross revenue in excess of $25 million?

(ii) buys, receives, sells, or shares the personal information of 50,000 or more consumers, households, or devices, (a) for commercial purposes (assume always true), (b) alone or in combination (assume always true), (c) annually, and

(iii) derives fifty percent (50%) or more of its annual revenues from selling consumers’ personal information.

Even if the business does not collect personal information, as long as is collected on behalf of a business (such as through a third party), the business could be covered by the CCPA, assuming the other requirements are satisfied.

What is the Do Not Sell Rule?

The Do Not Sell rule is a key part of the regulation. It states that businesses must give consumers the option to opt-out of the sale of their personal data.

Specifically, the regulation says that businesses must:

  • Have a page on their website titled “Do Not Sell My Personal Information.” On this page, consumers based in California can opt-out of the sale of their personal data.
  • The business must clearly link to the “Do Not Sell My Personal Information” webpage from the homepage.
  • The website must describe the consumer’s rights to opt-out of the sale of personal data and provide a link to the “Do Not Sell My Personal Information” page in its privacy policy.
  • Once a user requests that a business not sell their personal information, the business must respect this decision for a minimum of 12 months.
  • Finally, websites should have a way to prove that they are respecting these customer requests.

Businesses and website owners need to put processes in place that will help them adhere to the above guidelines.

For more information about the impact of the CCPA on your business, please contact the lawyers at Adler Law Group to schedule a consultation.

Technology, Innovation and the Law

In today’s world, business is no longer about simply having an online presence. Digital business is transactional and social across platforms and networks across thew globe. The previous model of one-to-one transactional business relationships has evolved to one that is reciprocal, collaborative and highly interactive.

This new level of engagement is not without risks. As businesses expand into new online areas for marketing and commerce, businesses should be aware of a myriad of laws and risk areas implicated when one conducts business online. Business lawyers must be familiar with Technology Law.

There are a wide variety of services around the most common types of content and businesses need legal disclaimers, protection of intellectual property rights and other ways to limit liability.

Generally, the key areas and issues are:

Trade & Commerce Issues

  • Advertising & Promotions Laws (these vary by state)
  • Affiliate Marketing Agreements/Relationships
  • Federal Regulatory Guidelines
  • Industry Regulations & Guidelines
  • CAN-SPAM Act
  • Online Contracts/Terms of Use (Click-Wrap/Browse-Wrap Agreements)
  • Disclaimers
  • Limits of Liability
  • Sales & Taxation/Clarifying Nexus Confusion
  • Choice of Law/Forum
  • Insurance Law
  • Website Representations and Warranties

Intellectual Property Issues

  • Copyright & Digital Millennium Copyright Act
  • Defamation/Free Speech
  • Trademark Law
  • Unfair Internet Business Practices Such as Domain Name Hijacking & Cybersquatting
  • Anti-cybersquatting Consumer Protection Act
  • Linking/Scraping/Crawling
  • Patent Law
  • Licensing
  • Trade Secrets

Privacy & Security Issues

  • Credit Cards / Transaction Processing
  • E-Payment and Credit Card Security/Privacy
  • Children’s Online Privacy Protection Act
  • Data Breach Notification Laws
  • Data Privacy Laws

Human Resources & Employment Issues

  • BYOD & Computer Usage Guidelines for Employees
  • Employment and Labor Laws
  • Social Media Guidelines for Employees

We look forward to the opportunity to discuss any questions you may have regarding the range of business, technology and intellectual property services we offer. Our law office is based in Chicago, Illinois. Please feel free to call us at (866) 734-2568 should you have any questions.

Tips for a Successful & Legal Influencer Marketing Campaign

On September 25, 2017, I gave a presentation at Influencer Marketing Days in NY on how to avoid unnecessary legal risks when using Influencer Marketing.

As most marketing professionals know, media consumption is moving from traditional outlets to other platforms. Explosive growth for social media and declining TV viewership means that advertising dollars are migrating with the eyeballs.  As a result, brands are turning to “influencers,”  celebrities, paid spokespersons and even consumers  who credibility enables them to affect attitudes and purchasing decisions.

Due to popularity and reach of platforms like Instagram, Snapchat, YouTube and even a resurgent Twitter, brands are partnering with these influencers to help the grow through views, impressions and “likes.” Online advertising is an active legal enforcement area and influencer marketing presents potential legal issues.

Since most lawsuits focus on consumer awareness (or lack thereof), legal compliance requires appropriate and adequate disclosures. The presentation focused on when disclosures are required and what constitutes adequate disclosure.

Understanding the “rules of the road” will help you navigate your influencer marketing campaign or program.  Some rules prohibit certain activities while other rules require affirmative actions to be compliant.

Contact us info @ adler-law.com to get a copy of the full presentation.

Advanced Issues in Contracts for Interior Designers

Every business transaction is governed by contract law, even if the parties don’t realize it. Despite the overwhelming role it plays in our lives, contract law can be incredibly difficult to understand.

Successful Interior Designers know how to manage the legal needs of the business while bringing a creative vision to life for a client or project. Confusion about rights, obligations, and remedies when things go wrong can strain and even ruin an otherwise promising professional relationship.

This program teaches new designers and entrepreneurs answers to some basic questions, such as:

  • What to do when clients / vendors / contractors don’t pay?
  • How can one use Indemnifications, Disclaimers and Limitations of Liability clauses to balance business risk when the parties may not be economically balanced?
  • What types of remedies are available and what are the limitations in scope for certain types of monetary and “equitable” remedies?

Take a deeper dive into advanced issues for interior design professionals. Learn how contracts can protect your design business and how to safeguard your rights.

Qualifies for .1 CEU credit.

This program was originally delivered on Aug. 17, 2017 at the Design Center at theMART 14th Floor Conference Center, 222 Merchandise Mart Plaza, Chicago, IL 60654

TRENDS IN DIGITAL MARKETING

Digital Healthcare Continues to Evolve

Widespread distribution of digital communications technology (phone, tablets, ultra-portable laptops, gaming devices) has changed the nature of marketing. However, medical practices and other healthcare providers are reluctant to use digital marketing techniques. While most industries move away from the distribution of massive, shotgun-style email and snail-mail campaigns and toward targeted, social media and demographic-driven efforts healthcare marketing is falling behind.

Digital marketing execs face many challenges getting the message and media mix right. Early adopters provide a look into the changing nature of marketing. From a pragmatic perspective, there are barriers to entry for digital healthcare marketing efforts (privacy, regulatory), the growing use of content marketing (native, branded), social marketing, and electronic marketing strategies (email marketing, online scheduling, etc.) in the healthcare field and customer-oriented services that can be a strategic use of the Internet for marketing to providers, patients and third-party service providers.

The evolution of healthcare marketing toward greater use of “native,” sharable and relevant content provides both obstacles and opportunities in acquisition and use of third-party media content.

Use of content marketing is increasing.

On average, 35% of all marketers use print magazines, but 47% of healthcare marketers use them. In print, 28% of marketers use print newsletters compared to 43% of healthcare marketers, and 26% of marketers use print for annual reporting compared to 36% in healthcare. When it comes to using blogs, 74% of all marketers use blogs compared to only 58% in the healthcare industry. The situation is similar for social networks, with an interesting exception – 71% of healthcare marketers make use of YouTube, more than the average of 63%. This is likely because healthcare professionals use YouTube to televise procedures and interview doctors.

By now marketers should be accustomed to using their own creative content. However, focusing on owned assets like a website and email won’t move the needle enough to impact the bottom line. As a result, healthcare marketers are integrating new content (in the form or “advertorials” or “native” content). This in turn is developed alongside a long-term SEO strategy.

Native advertising distributes “sponsored” content on relevant pages, delivering relevant content to the right audience in a way that is non-intrusive and integrates with the user experience.

Native Content often involves use of product/service reviews and endorsements. It is important to include proper disclosures when using native content. The FTC will initiate enforcement actions against marketers that deceive consumers.

In the Matter of Son Le and Bao Le, the FTC charged that the two brothers deceived consumers by directing them to review websites that claimed to be independent but were not, and by failing to disclose that one of the brothers posted online product endorsements without disclosing his financial interest in the sale of the products.

You’re Invited to LAUNCH: Client Contracts 2.0

Contracts

DATE: Wednesday, June 29
TIME: 9:30AM to 11:30AM
LOCATION: New York Design Center, Conference Room
ADDRESS: 200 Lexington Avenue, NYC

Have you ever had a client refuse to pay a bill, not give you credit for your work, or use your design scheme without hiring you? As loathsome as these situations sound, the reality is that they happen more often than we like to admit. The best way to avoid these issues is to arm yourself with an airtight contract. For this task, we’ve enlisted David Adler, a Chicago-based lawyer who understands the ins and outs of the design industry, to serve as your legal expert for the morning. He will address some of the biggest risk factors interior designers face today and how your contract can (and more importantly, should) cover you. You’ll leave with a better understanding of how you can tighten up your existing contract so you don’t have to learn the hard way.

Register for the event here.