There are three things a social media website operator or digital marketer probably hates to hear most before launching an online ad campaign: 1. Can you make this go viral?; 2. How many likes/tweets can you get?; and 3. Did you run this by legal? As attorneys, we are pretty familiar with the last one and are no strangers to that “oh man” grimace. Social media teams associate legal sign-off with at worst compromising creativity and at best a necessary evil. We are here to say – however - that contrary to your marketing predilections, a little legal knowledge up front can actually help with the final product by incorporating some basic legal concepts into your projects from the get-go.
This article doesn’t aim to be a textbook on the “Law of the Internets”. We know you wouldn’t read it if it was (and we wouldn’t have any fun writing that so what’s the point.) Rather, this article is a straight up summary of legal areas you should be aware of because they ultimately affect your business and bottom-line. Some basic knowledge of the relevant legal landscape up front may help save time, money – and avoid frustration - in the long run. After all, knowing – as G. I. Joe so eloquently put it – is half the battle. In the first installment of this four-part summer series, we’ll cover the basics of privacy law. In the next three installments, we’ll provide an overview of online marketing guidelines, rules of the road for using third-party content, and finally, the pitfalls marketers typically encounter when incorporating “user generated content” in advertising and promotions.
Part One: The Privacy Problem (With Big Data comes Big Responsibility)
When designing a social media website or crafting a social ad campaign, remember the golden rule: tell consumers the truth about what personal information you are collecting from them and what you are going to do with it. Sounds easy in theory, but in practice - how do you do that?
The starting point for compliance with privacy laws is the nature of your business. Social media developers should ask: “What does my business do?” Marketers should ask: “What does my campaign do for this business?” Is the website a location-based service? Are we processing payment information from users? Collecting personal information such as names and addresses? What is the revenue model? Are we partnering with targeted advertisers? A solid understanding of exactly what information you are collecting, for what purpose and where the data goes is key for the next, perhaps most critical step in privacy compliance—disclosure.
- Third-Party Data Sharing—Not only is it important to disclose what you collect, but you should disclose what you do with it—particularly those you share customer data with. This is especially true if information is being shared for advertising purposes, even just anonymous aggregate data about your website’s traffic.
- Mobile Data Privacy—Marketers and social media websites should especially be aware of increased privacy regulations and enforcement in the mobile sphere. For instance, the FTC recently released in February 2013 a staff report recommending ways in which mobile marketplace players can better inform consumers about their data practices. More pointedly, California’s Attorney General recently sent about one hundred letters to mobile app developers—threatening to impose $2500 per download fines under California law for not having a policy displayed.
Privacy is a constantly changing area of the law. For instance, just this July 1st, a leading group of international privacy experts, the International Working Group on Data Protection in Telecommunications, recommended the implementation of a universal do-not-track default setting for internet browsers. Just a couple weeks after this recommendation, another influential group of privacy experts, the Tracking Protection Working Group (who have now been working for two years on a universal “Do Not Track Standard”), reached a consensus that web users should at least be able to opt out of any targeted advertising based on their browsing activities and that advertising websites should be required to honor that rule. With potentially sweeping changes such as these being proposed on several fronts, online marketers and advertisers - now more than ever - should keep informed of privacy law and how it may affect their campaigns.
Co-author of this post is Alan M. Pate, an associate in the New York office of BakerHostetler.
DISCLAIMER: This article does not constitute legal advice and because of its general nature the information provided may not be applicable in many situations and should not be acted upon without specific legal advice based on particular facts and circumstances.