Avoiding Legal Pitfalls of Advertising Online

Elizabeth C. Lewis© Law Office of E.C. Lewis, P.C.

Online Marketing

Privately owned websites

Public websites

Email marketing

Social media sites

Text messaging

Mobile communications

Govt. Agencies Affecting Online Marketing

Federal Trade Commission

Federal Communications Commission

Securities Exchange Commission

Also - State Governments

Laws Affecting Online Marketing

Telecommunications Act

Children’s Online Privacy Protection Act

Franchise and Business Opportunity Rule

Lending Rules

Truth in Advertising

CANSPAM Act

Industry Specific Rules Gramm-Leach-Bliley Act Colorado Rules of Professional Ethics

General Principles

Copyright law

Trademark law

Trade secret law

Employment law

Tort law

Tonight’s Roadmap

Website Text

FTC Endorsement Rules

Recent Rulings in SEO marketing

CAN SPAM Act

Facebook/LinkedIn

Website Legalize

Terms of Use

Privacy Policy

Copyright Policy

Industry Specific

Terms of Use

Covers the use of the website by users

Covers issues like jurisdiction, venue, uptime, etc

May include language regarding sales on the site

May include language regarding user conduct on site

Privacy Policies

Covers what the website owner does with the information gained from users

Should state if any third party applications are used through website (i.e. PayPal)

Should cover information gained through weblogs

Copyright Policies

DMCA requires that you have information about who to contact to remove infringing materials

Should have designated agent

In some cases need to have website registration form with copyright office

Industry Specific Texts

Red Flag Rules if you extend credit

Software license agreements

SEC information

Attorneys, financial institutions, etc

FTC Endorsement Rules

Rules were released in October of 2009 regarding paid endorsements

15 US §45

Affects bloggers, employees, employers, family members

What is an Endorsement?

Endorsement – any act in which a person is likely to believe the information is coming from someone other than the sponsoring advertiser

Covers Paid advertisements Free products Employees/material connections

What Can I Say?

Endorsements Must be honest Must not say anything advertiser can’t Must disclose relationship

Endorsements

Both endorser and endorsee can be held responsible if relationship not disclosed

Action is brought by the FTC

No right of private action

Adwords

Lanham Act – regulates trademarks

Current status European Court of Justice said okay for

competitors to bid on competitors’ names in March

US court say adwords can contain competitors’ names

Rosetta Stone case is still pending

CAN SPAM Act

Controlling the Assault of Non-Solicited Pornography and Marketing

Passed in 2003

Applies to commercial and transactional email

Applicable Emails

Commercial mail – primarily promoting service or product

Transactional mail - primarily to inform existing client of something dealing with past or current transactions

What You Can’t Do!

Deceptive email headers

Deceptive subject lines

Not give opt-out

Make multiple accounts to send email

Send fraudulent, obscene, or child porn

What You Can Do!

Email people without permission (as long as not dictionary style list)

Send multiple emails until someone opts out

Send commercial email

Enforcement of CAN SPAM

Civil penalty of up to 16k per email

Criminal convictions for Email harvesting Randomly generating receipents False info Fraudulent, pornographic emails

Best Practices

Although it may be legal, ask: When do you add people? Do you want to be added without permission? Do you give way to opt-out before adding

them?

Facebook

Terms of Use By posting information, you grant Facebook a

non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook until you delete your account.

Profile page must be a real person

Cannot collect information about others without permission and policy in place

LinkedIn

“You grant LinkedIn a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, any information you provide, directly or indirectly to LinkedIn, including but not limited to any user generated content, ideas, concepts, techniques or data to the services, you submit to LinkedIn, without any further consent, notice and/or compensation to you or to any third parties.”

Questions?

Slides will be available at:

www.eclewis.com/wordpress

Elizabeth C. Lewis, Esq.

Law Office of E.C. Lewis, P.C.720-530-3405

Elizabeth.Lewis@eclewis.com

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