Affiliate Marketers: Want to learn best practices, strategies, and tactics from a seasoned legal professional who works with businesses and regulators at the federal and state levels?
David Adler takes clients through the ins-and-outs of providing advertisers, merchants, agencies and affiliates the tools they need for running a trustworthy and successful business.
On May 25, 2022 David Adler is presenting Trafficking in Trust: How to Enhance Affiliate Engagement an AMDays Workshop at Affiliate Summit East 22. In case you can’t make the presentation, here’s an excerpt of one of the topics covered:
The 3 C’s of Affiliate Marketing Disclosures: Clear Conspicuous Content.
Clients often seek my counsel on issues related to Affiliate Marketing legal disclaimers and disclosures. For example, this might require guidance on the substance and placement of legal disclaimers for a consumer-oriented, product review and ratings website. This type of website needs to include at least two different, but related, disclosures. First, it must disclose that it is compensated when a user clicks on a link. Second, it must disclose certain material connections.
Affiliate Disclosure Content
There are several factors to the affiliate commission disclosure. Appropriate disclosures have both the necessary content and the correct placement within a specified context.
What needs to be in your affiliate commission disclosure?
The disclosure must make clear that you earn a commission if a user buys something after clicking on a link on your site.
Affiliate Disclosure Context
Where is the optimal location for the disclosure?
Although there is a general practice of putting disclosures on the bottom of the website pages, it can be somewhat obscured and less effective. A location at the bottom of the page, in the same font style, font color, size, and placement as the rest of the text on the bottom of the page, does not help it “stand out.”
The key to proper affiliate link disclosures is making sure the disclosure is “clear and conspicuous.” This depends on both context (placement and proximity to the relevant content) as well as the content of the disclosure itself. The general rule is that the closer the disclosure is placed next to the relevant message, the better.
Although not required, it is recommended to add the affiliate link disclosure on the home page, above the fold. While there is no explicit requirement, FTC disclosure cases and guidelines suggest that, in their view, this is required for adequate disclosures.
What should I do now? Always seek experienced counsel. A seasoned lawyer will help you address other considerations including prominence, distractions, industry vertical (i.e. healthcare, financial services) requirements, and language.
Media Creation & Consumption is Challenging Traditional Legal Notions.
At a time when #media creation & consumption has transformed, two recent cases, both involving Fox News Network on opposite sides of the “fair use” defense to copyright infringement, highlights the evolving and dynamic legal challenges facing business and content creators. In each case, Fox News loses on Summary Judgment.
Photographs, Fair Use & Social Media
The first case, North Jersey Media Group, Inc. v. Jeanine Pirro and Fox News Network, LLC, involves what many recognize as the “now iconic photograph of the firefighters raising the American flag on the ruins of the World Trade Center on September 11, 2001.” The photograph – which bears a striking resemblance to Joe Rosenthal’s World War II photograph of the Iwo Jima flag-raising – has become a similarly striking symbol of American patriotism.
That similarity was not lost on a production assistant for a Fox News program “Justice with Judge Jeanine” who posted the two images, unaltered, on the show’s Facebook Page, along with the phrase “#neverforget,” allegedly to commemorate the twelfth anniversary of the attack.
The case is noteworthy for its analysis of the “fair use” defense in a social media context. While the Copyright Act grants authors certain exclusive rights, including the rights to reproduce the copyrighted work and to distribute those copies to the public (17 U.S.C. § 106(1), (3)) one often quoted and widely misunderstood limit to those rights is the doctrine of “fair use,” which allows the public to draw upon copyrighted materials without the permission of the copyright holder in certain circumstances. The fair use doctrine is an after-the-fact defense to infringement, not a pre-emptive justification to use another’s work without permission.
Educated in journalism and media studies, the production assistant acknowledged that she understood a copyright to be something that is owned by someone else although she had no training in copyright law either in college or during her tenure at Fox News. She had been working at Fox News for approximately three years, had previously sought legal advice regarding use of photographs on the broadcast, but never in connection with posting images to the program’s Facebook page.
The key take-away for businesses and digital marketers alike is the need for vigilance when using third-party content on social media. Employee education and training on what copyright protects, what it doesn’t, and how it works may help prevent your business form facing a similar situation.
Media Monitoring, Digital Content & Copyright Fair Use
The second case, Fox News Network, LLC v. TVEyes, Inc., involves a company that monitors and records all broadcasts by more than 1,400 television and radio stations twenty-four hours per day, seven days per week. This content is indexed and organized in a searchable database that allows subscribers to search terms, determine when, where, and how those search terms have been used, and obtain transcripts and video clips of the portions of the television show that used the search term.
Fox News Network, LLC sued to enjoin TVEyes from copying and distributing clips of Fox News programs. TVEyes asserted that its system and services are permitted under the doctrine of “fair use.”
The court found that TVEyes service was a fair use. Unlike other services that simply “crawl” the Internet, culling existing content available to anyone willing to perform enough searches to gather it, the indexing and excerpting of news articles, where the printed word conveys the same meaning no matter the forum or medium in which it is viewed, the service provided by TVEyes is transformative. By indexing and excerpting all content appearing in television, every hour of the day and every day of the week, month, and year, TVEyes provides a service that no content provider provides. Subscribers to TVEyes gain access, not only to the news that is presented, but to the presentations themselves, as colored, processed, and criticized by commentators, and as abridged, modified, and enlarged by news broadcasts.
The key take away for technology companies that rely on content is what the court says about features of the Services (as opposed to the technology itself, e.g. the software/platform): the issue of fair use is for the full extent of the service, TVEyes provides features that allow subscribers to save, archive, download, email, and share clips of Fox News’ television programs. The parties have not presented sufficient evidence showing that these features either are integral to the transformative purpose of indexing and providing clips and snippets of transcript to subscribers, or threatening to Fox News’ derivative businesses.”
In other words, evidence that certain features are essential to the use of a service, may be sufficient to show how the features (service) exist above- and-beyond what stale or static content can show.
You Don’t Have to Muddle Through
When it comes to understating evolving technology legal risks, your business can’t simply muddle through. The professionals at the Adler Law Group can help you adopt conduct risk assessments, provide employee training and methodologies for approaching these challenges by setting objectives, determining scope, allocating resources, and developing practices that will efficiently and effective manage risks, while keeping pace with the business.
AUSTIN, Texas — A divided House vote provides momentum for Texas employees who wish to shield personal text messages, email passwords under a bill backed by Democratic State Rep. Hellen Giddings and given preliminary approval Thursday.
Proponents say Texas workers need the same social media protections provided in several other states. The bill prohibits employers from asking job applicants or employees for passwords to access their Facebook, Twitter or other personal accounts. Opponents argue it will provide “safe harbor” for employees to steal proprietary information at the workplace through their personal accounts.
No specific penalties are spelled out for employers who would violate the law.
The Texas law is another reminder of the ongoing evolution of Social Media law and regulation as legislators and private businesses struggle to understand how these technologies affect everyone’s rights, obligations and remedies.
If you or your business is concerned about social media legal and regulatory compliance, contact David Adler at Leavens, Strand, Glover & Adler. 866-734-2568 firstname.lastname@example.org.
I just returned from RSAConference 2013 where I had the privilege and honor of giving a presentation of the legal risks caused by social media in the workplace. As a speaker-attendee, I had the priceless benefit of access to all the other speakers and programs held during the conference.
One such program I attended was “We Were Hacked: Here’s What You Should Know”. The speakers, Matthew Prince (@eastdakota) CEO of CloudFlare, and Mat Honan (@mat) writer for Wired Magazine, shared their common experience as targets of high profile hacks. Hearing the details from them first hand, including information from interviews with the hackers themselves, I learned how easy it is to be the victim of hacking and how it’s the little things that create exploitable seams in our information security barriers.
Rather than rewrite their stories, I thought I would share three simple lessons I learned that I’ve already implemented and you should too. Besides, Matt does a better job telling his own story which can be found here.
Here are the three things I learned about how you can protect yourself and others in your organization.
First, security attacks go after the “low hanging fruit” and that often means figuring out a way to exploit your personal email address. With so many web-based services and so much login information to remember, many of us use our personal email as our username for everything from the web sites on which we comment, to our online photo gallery, to our online banking service. Unfortunately, this is probably the address we use for password recovery if we forget. Given that our digital lives are easily mapped, hackers already have one piece of the two-piece login puzzle: they know your user name.
TIP NO. 1: Use a private, obscure email address for your more sensitive information.
Second, once a hacker has accessed your accounts, your computer and your files, the fun has just begun for them. As Matt Honan described, these often adolescent script kiddies simply don’t understand the value of your stored memories and other information. In his case, all the photos of his children were permanently deleted. Regardless of a hacker attack, stuff happens and you don’t want to lose everything because you we’re too lazy to back up.
TIP NO. 2: Back Up your digital life, early and often.
Third, today’s’ Internet is an interdependent ecosystem. Just because you or your organization takes security seriously, doesn’t mean that other do as well. Your internal systems are not enough. Like it or not, the seams of your security perimeter are intertwined and permeated by the services and systems of customers and vendors. For most consumers, the there is a Hobbesian choice of Security v. Convenience. Multiple login usernames and super long passwords are difficult to remember and tedious to use. As a result, most people choose the least secure means of authentication on the assumption that using astringent password is enough. Unfortunately, some people don’t even bothers with that. A recent ZoneAlarm study found that “password” was the fourth most commonly used password by consumers.
Google, Facebook and others have started using two-factor authentication. Two-factor authentication requires that one enter a code after entering the username/password combo. The code is sent via, text message, voice call or email. This greatly reduces the chances of unauthorized access because hackers would need to have your phone, in addition to your username/password combo.
TIP NO. 3: Whenever possible enable two-factor authentication.
Please understand that there is no “magic bullet” when it comes to Cybersecurity. Taking these precautions does not guarantee that you won’t be attached or that your account information won’t be accessed. However, these are important and easy steps that you can take to improve your personal data security.
A recent New Jersey District Court case underscores the rise in tensions between employers and employees when it comes to Social Media Accounts. In Ehling v. Monmouth-Ocean Hospital Service Corp., the Court denied an employer’s motion to dismiss a former employee’s invasion of privacy claim that alleged a supervisor accessed the employee’s Facebook account. Ehling worked for Monmouth-Ocean Hospital Service Corporation (“MONOC”) and became Acting President of the local union for Professional Emergency Medical Services. Ehling alleged that MONOC began engaging in a pattern of retaliatory conduct against her eventually leading to termination of her employment.
Posting Limited to “Friends”
Ehling maintained an account on Facebook, but kept access to her wall post limited to Facebook “friends,” many of whom were coworkers, but none of whom were members of MONOC’s management. Ehling alleged that MONOC surreptitiously gained access to her Facebook account when a supervisor summoned a MONOC employee, who was a Facebook friend, and coerced, strong-armed, and/or threatened the employee to access his Facebook account in the supervisor’s presence for the purpose of viewing and copying Ehling’s posts.
Ehling alleged that MONOC then sent letters regarding a certain posting to the New Jersey Board of Nursing and the New Jersey Department of Health, Office of Emergency Medical Services as it was concerned that Plaintiff’s Facebook posting showed a disregard for patient safety. Ehling alleged the letters were malicious and meant to damage her professionally.
Ehling’s claim for common law invasion of privacy was premised on Defendants’ alleged unauthorized “access of her private Facebook postings” The Court denied MONOC’s motion to dismiss which argued that Ehliong did not have a reasonable expectation of privacy in her Facebook posting. The Court stated that Under New Jersey law, to state a claim for intrusion upon one’s seclusion or private affairs, a plaintiff must allege sufficient facts to demonstrate that (1) her solitude, seclusion, or private affairs were intentionally infringed upon, and that (2) this infringement would highly offend a reasonable person. See Bisbee v. John C. Conover Agency Inc., 186 N.J. Super. 335, 339 (App. Div. 1982). “[E]xpectations of privacy are established by general social norms” and must be objectively reasonable – a plaintiff’s subjective belief that something is private is irrelevant. White, 344 N.J. Super. 211, 223 (Ch. Div. 2001).
The Impact of Social Media on Privacy is Unsettled
The Court went on to make further observations on the impact of Social Media on Privacy:
“Privacy in social networking is an emerging, but underdeveloped, area of case law. See Robert Sprague, Invasion of the Social Networks: Blurring the Line between Personal Life and the Employment Relationship, 50 U. Louisville L. Rev. 1, 13 (2011) (discussing the undefined legal boundary between public and private communications on social networking websites).
There appears to be some consistency in the case law on the two ends of the privacy spectrum. On one end of the spectrum, there are cases holding that there is no reasonable expectation of privacy for material posted to an unprotected website that anyone can view. See, e.g., United States v. Gines-Perez, 214 F.Supp.2d 205, 225 (D.P.R. 2002), rev’d on other grounds, 90 F. App’x 3 (1st Cir. 2004) (“[I]t it strikes the Court as obvious that a claim to privacy is unavailable to someone who places information on an indisputably, public medium, such as the Internet, without taking any measures to protect the information”); Yath v. Fairview Clinics, N.P., 767 N.W.2d 34, 44(Minn. Ct. App. 2009) (holding that privacy was lost when private information was posted on a publicly accessible Internet website and “[a]ccess to the publication was not restricted”).
Some Reasonable Expectation of Privacy
On the other end of the spectrum, there are cases holding that there is a reasonable expectation of privacy for individual, password-protected online communications. See, e.g., Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (N.J. 2010) (employee could have reasonably expected that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private); Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 587 F. Supp. 2d 548 (S.D.N.Y. 2008) (employee had a reasonable expectation of privacy in personal, password-protected e-mail messages stored on a third party’s server, although the employee had accessed that outside server while at work).
Legal Approaches Continue to Develop
The Court note that a consistent approach hasn’t yet developed. While most courts hold that a communication is not necessarily public just because it is accessible there is disagreement as to how far that theory extends. Some courts have adopted the rule that when one shares private information to one or more persons, there may still be a reasonable expectation that the recipients of the information will not disseminate it further. What is clear is that privacy determinations are made on a case-by-case basis, in light of all the facts presented.
Into the data jungle – in association with Huron Legal
Technological developments such as cloud computing, social networking and mobile apps mean EU law is no longer fit for purpose. The EU claims current laws often conflict and cost businesses a total of nearly £2bn a year.
Saudi Arabia considers law against insulting Islam
Bangladesh News 24 hours
JEDDAH, Saudi Arabia, July 16 (bdnews24.com/Reuters) – Saudi Arabia is studying new regulations to criminalise insulting Islam, including in social media, and the law could carry heavy penalties, a Saudi paper said on Sunday.
Mind the missteps in online job dance
With some background check firms specializing in social media searches (U.S.-based Social Intelligence Corp. for one), how do third-party recruiters use social media when screening or finding clients for law firms in Canada?
10 Tactics for Integrating Photographs into Content Marketing
Business 2 Community
Acquire digital rights for images. Remember when using images, especially photographs, your legal team is your best friend. Ensure that you’ve got the right to use the photos by incorporating outtakes and additional shots for social media.
Reasonable Expectations of Privacy in the Digital Age
Mondaq News Alerts (registration)
In this digital age of smart phones, global positioning systems, cloud computing, and social networking, determining what constitutes private information and what lengths our legal system will go to protect it is increasingly challenging.
Pinterest remains a hot social media property, registering major growth in recent months. Business Insider said investors just gave it another $50 million at a $1.5-billion valuation, and employees are leaving other Silicon Valley firms to join.
Last year, some users saw on their Facebook walls enticing posts offering video of Osama bin Laden’s capture. Those that clicked on the link and followed the provided directions ended up giving hackers access to their Facebook accounts; they were victims of a social media scam.
The Future Of Social Is Moving From Mere Participation To Analysis & Strategic Initiatives
I had the opportunity to attend and participate in Converge 2012 run by the Institute for Social, Search & Mobile Marketing. The theme was mastering the Business of Social Media. The Conference had a great selection of speakers (yours truly included) and topics that really resonated with the audience. I hope to summarize here some of the take-aways I learned at this conference.
Business Is Now Social
The last few years have seen an unprecedented shift in the adoption of social platforms for businesses to reach and interact with customers. What started as a “dipping our toes into the water” excerise has now matured into jumping in with both feet. Not surprisingly, the first few presentations of the conference focused on the effect of so much participation: greater focus on ROI. The presentations covered a lot of ground, but here are the key take aways from Day 1:
Businesses that fail to integrate the social channels may not exist in five years
Analytics are maturing in terms of both measurement tools and metrics
Better analytics are driving innovation by putting companies ahead of emerging issues instead of simply reacting to them
Creating a Social Media culture must come from the top and flow down
The growth of mobile platforms Is blurring the line between online and in-store experiences because of anywhere/anytime andpersonalized access
Day 1 concluded with the panel presentation in which I participated “Social Media “Venture Heaven” Money is flooding into social media, It’s time to understand why.” Key take-aways from this panel include the followig Data about the growth in Mobile:
As of May, 2012, mobile comprises 10% of Internet traffic, up from just 4% less than a year and a half ago
Mobile = ~8% of ecommerce
Monetization growing rapidly 79% is Apps, 21% is from ads
There has been a rapid increase in time spent relative money spent on ads; TV is roughly at parity while Mobile ad spend is about 1/10 of that
Drivers of growth in Mobile:
Improved user interfaces
More emphasis on design aestheticS
In a world of ubiquitous fast Internet, mass blogging and micro-blogging, minute-by-minute status updates and customer complaints and recommendations, businesses need to focus on tailoring their product for their customers desires, rather that merely tolerating customer requests. Whatever device/platform customers use most will get the most attention from developers, accessory makers and potential new customers.
(See “Protect Our Data! A Digital Consumer Bill of Rights” and “A Bill of Rights for Facebook Users” for related discussion.) The temptation to exploit user data in ways that erode privacy will always be present. Just by joining Facebook, …
In addition, in February the White House proposed a “bill of rights” to protect consumer privacy online, including an easy way for users to tell Internet companies with one click whether they want their online activity to be tracked.
Howard A. Schmidt is returning to the private life, but the White House is still pushing for some kind of legislation in the Consumer Prvacy Bill of Rights fashion. While the Cyber Intelligence Sharing and Protection Act passed the House of …
Your decision to hold this hearing will help protect important privacy rights. The Electronic Privacy Information Center (“EPIC”) is a non-partisan public interest research organization established in 1994 to focus public attention on emerging privacy …
See all stories on this topic »
In fashion, innovation never goes out of style. Therefore, it is no surprise that fashion houses and clothing brandsmarket across many different
social media platforms. It is axiomatic that fashion marketing requires a deep understanding of the target audience, regardless of whether that knowledge comes from online or offline interaction. Social media provides a forum for a more authentic, transparent and personal engagement with the customer, but also highlights whether a brand has judged (or misjudged) its customer base.
To be successful in social media, brands need to harness the personality, wit, charm and, in all likelihood, free time of their staff. In order to ensure positive, informative and engaging social interaction, a fashion brand’s social media rules must be smart, positive and inclusive. Here are some guidelines for drafting a social media policy that will bring out the best in your brand, your employees (brand ambassadors) and your customers.
Rather than writing out a lengthy, legal boilerplate script, keep these considerations in mind when drafting your policy:
Philosophy. Begin with a discussion of how social media fits into an employee’s job expectations and performance. For example, guidelines are important, because if not followed “bad things” can happen, such as losing customers or vendors, the company could get into legal trouble, or worse, you could lose your job.
Behavioral Expectations. This is a good place to remind employees that even though it’s a big world, you are often in a small community and, on the Internet, it’s forever. What a person says can be seen by customers and employees all over the world. Remind employees to stick to their areas of expertise and use respectful conduct. Other watch words include “timeliness” (posts should be fresh, current and relevant), “perspective” (something that may sound clever and racy to one person may be inaccurate or offensive to another), “transparency” (be the first to point out that you are an employee and make it clear that you are not a company spokesperson) and “judiciousness” (use caution when discussing things where emotional topics like politics and religion and show respect for others’ opinions).
Channel expectations. If your company has a social media strategy, make sure employees know which sites (communication channels) are appropriate for which types of communications and marketing messages.
Contextual Expectations. Help employees understand the context within which they are engaging customers. Suggest using a conversational style. Remember that in customer’s eyes, “perception is reality.” Add value: Make sure your posts really add to the conversation. If they promote the company’s goals and values, supports the customers, improves or helps to sell products, or helps to do jobs better, then you are adding value.
Content Expectations. The policy must have clear and conspicuous language about what is considered company proprietary information, including current projects, trademarks, names, logos and how they may be used. Never: (i) discuss or post about financial information, sales trends, strategies, forecasts, legal issues and future promotional activities; (ii) post confidential or non-public information about the company; (iii) give out personal information about customers or employees; or (iv) respond to an offensive or negative post by a customer.
Consequences. Lastly, be upfront about the very real consequences if mistakes are made. If a mistake occurs, correct it immediately and be clear about what’s been done to fix it. Contact the social media team if there’s a lesson to be learned.