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Navigating Privacy and Spam Compliance in Social Media Advertising
Navigating Privacy and Spam Compliance in Social Media Advertising
Navigating Privacy and Spam Compliance in Social Media Advertising
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Contextual advertising
Targeting based on current visit to single site search query
Behavioural advertising
Targeting based on profile developed based on history of sites
Social advertising
Targeted based on context and interaction with site, real interests
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The value of being connected and transparent is so hight that the roadbumps of privacy issues are much lower in actual experience than peoples fears. Reid
Hoffman, LinkedIn Founder and Executive Chairman
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information
Purposes must be identified at or before collection Cant require consent as condition of supply or product or service, unless
Collection to be limited to what reasonably required to fulfil purposes Personal information to be retained only as long as reasonably necessary to
fulfil purposes
Personal information to be accurate and up-to-date Individual right of access Protected by reasonable security safeguards
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Application So far...
OPC has taken expansive view of what constitutes
personal information.
cookies IP addresses
Can include:
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Therefore, opt-out consent OK But social ads more intrusive, require enhanced
explanations to users
Opt-out insufficient
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Hacking is now about organized crime, targeted and well Protect user data accordingly Keep only what you need, de-personalize if possible try
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Privacy Concerns
45% of Cdn social network users are concerned about
request too much personal information, dont keep it secure, sell it to others, or use it to send spam of personal information were vague
children?
standard:
reasonable to expect that the individual understands the nature, purpose and consequences of the collection, use and disclosure of the personal information to which they are consenting.
OPC has voiced concern, sees as vulnerable group; focusing on
outreach, education
Appropriation of Personality
Relevant to social ads that use name, likeness of someone
in network in association with endorsement, sale personality, but only old media cases media ads, implied endorsements
Canadian law recognizes tort of misappropriation of Similar claims being made in other jurisdictions re social Important to have clear and unambiguous consent May still be liability if claims relate to fake profiles
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Creates identification, contact and unsubscribe obligations Prohibits the installation of a computer program without
Prohibits the alteration of transmission data or rerouting of Creates detailed disclosure requirements to obtain consent Creates significant monetary penalties for non-compliance Creates private right of action for damages stemming from
SLIDE 20 STIKEMAN ELLIOTT LLP
Key Definitions I
electronic message means a message sent by any
means of telecommunication, including a text, sound, voice or image message. connection with the transmission of an electronic message to
a) b) c) d)
an electronic mail account; an instant messaging account; a telephone account; or any similar account.
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Key Definitions II
1(2) For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that
a) b) c) d)
offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land; offers to provide a business, investment or gaming opportunity; advertises or promotes anything referred to in paragraph (a) or (b); or promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.
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the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; and the message complies with subsection (2) [requirements as to sender ID, contact info, unsubscribe] that is sent by or on behalf of an individual to another individual with whom they have a personal or family relationship, as defined in the regulations;
9.It is prohibited to aid, induce, procure or cause to be procured the doing of any act contrary to any of sections 6 to 8.
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Broad application to commercial activity not just Generally require express consent to send Could be liable if seen to induce social net user to send
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particularly challenging in social media space users timelines cant opt out
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Assume the worst; law of unintended consequences --test and Transparency re collection, use and disclosure practices Prominent, easy to understand, access FAQs, layers Get best consent you can scroll and click Keep records onus on you to prove
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Review/modify formats for electronic marketing Ensure effective and timely unsubscribe Review/modify program installations, associated disclosures and
consent
Ensure consent records are retained and retrievable Engagement of marketing, brand, technical resources to detect
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Overview
1. 2. 3. 4. 5.
Social Media highlights the tensions between marketing objectives and legal objectives It is not correct to say that there are no rules - the old rules are usually adaptable Summary of Key Contest Legal Requirements Implementing Online Contests Pitfalls of Social Media - Managing Social Media Contests and Promotions
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Social Media highlights the tensions between marketing objectives and legal objectives
How do marketers see social media promotions?
novel edgy dynamic connect with audiences more intimately engage with consumers bypass traditional channels users shape their own experiences go viral create buzz marketing that doesnt feel like marketing
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Social Media highlights the tensions between marketing objectives and legal objectives
How do lawyers see social media promotions?
what are they?? uncontrolled hazy risky IP issues privacy law issues personal information law issues PR issues headache no clear parameters or boundaries
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Social Media highlights the tension between marketing objectives and legal objectives
Social Media presents opportunities and risks The very things that make social media powerful (enhanced
reach, user input, ability to go viral, etc.) are the same things that create risks achieving advertising objectives cost-effectively, but they can also backfire and, in the worst case, generate negative publicity
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rules
However, the old rules are broad-based and adaptable The old rules have dealt with new types of media before Drafting new rules may not be desirable not possible to anticipate
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Must consider range of potential legal hurdles. That said, most important contest-specific rules are contained in the Criminal Code and Competition Act
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falsely gives the general impression that the recipient has won or will win a prize or other benefit.
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and the need to provide basic contest details in advertising and point of sale materials. These items are often contained in short-form rules.
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money or other valuable consideration in order to participate in a game of chance or a game of mixed chance and skill, and it is also an offence to award prizes solely on the basis of chance
I. II.
provide for a no-purchase method of entry; and incorporate an element of skill commonly satisfied by requiring the winner to correctly answer a time-limited, mathematical skill-testing question
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Requirements include: Specific content for contest rules (similar to that required under
the Competition Act) Payment of duties and notification to the Qubec Rgie des alcools, des courses et des jeux Payment of a security deposit to the Rgie for various reasons Rules are submitted to Rgie. Changes to the rules are to be submitted to the Rgie. Language requirements. These requirements are under increasing strain in a social media world.
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seems to be: (i) drive users to websites; and (ii) obtain information about users. effective option.
Online is a quick, convenient, secure (for the most part), and cost Online platform is subject to the same legal requirements as
traditional contests.
be made when running a contest online. These contests are highly public and are not entirely within the companys control.
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the Competition Act to Representations on the Internet addressed online disclosure for contests
Contest rules should be accessible and the number of clicks required
various sites, or purchase additional software or internet service to access contest rules.
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regarding geographic applicability of the contest should appear at the point of entry.
Open to legal residents of Canada only. Contest is governed by
Canadian law.
purchase requirement, however, software requirements (i.e. requiring the use of a particular browser) may be deemed consideration.
Similarly, requiring consumers to spend excess energy to enter the
contest (i.e. the completion of a lengthy survey or viewing a long video) may be classified as consideration and should be avoided.
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Identity of the entrant Internet service fees and the no purchase necessary
requirement
Corruption or security issues Automatic or fraudulent entries (professional entrants) Include flexibility in the official rules Ability to filter / moderate entries (particularly video or user-
generated entries)
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For example:
www.flickr.com/guidelines.gne
Facebook -www.facebook.com/promotions_guidelines.php
Promotions on Facebook must include:
A complete release of Facebook by each entrant or participant. Acknowledgment that the promotion is in no way sponsored,
endorsed or administered by, or associated with, Facebook. Disclosure that the participant is providing information to [disclose recipient(s) of information] and not to Facebook.
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- http://support.twitter.com/articles/68877-guidelines-for-contests-on-
Must discourage the creation of multiple accounts Must discourage posting the same Tweet repeatedly Must encourage the use of topics relevant to the contest
YouTube
- http://www.youtube.com/t/contest_platform_rules
Contest must not require payment or consideration in order to Release YouTube of any responsibility or liability regarding the
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etc.
privacy or publicity, or infringe on any third-party rights and/or interests, or give rise to any claims for payment whatsoever. sponsor/administrator.
The submitted content becomes the sole property of the contest The content submitted is subject to review according to the submission
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Challenge Contest
university/college students.
Goal was to "Be the #1 party school in Canada." Contest was cancelled after numerous complaints from the
dean of students at St. Francis Xavier University and parents of students. cheap marketing were raised.
Many felt Molson "stepped over the line" and concerns about
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designated video clips and music to create a customized commercial for the Tahoe. general - many ads featured profanity and explicit content.
Resulted in ads that were critical of the company and SUVs in Environmentalists inundated the ads with messages about the
harmful effect of SUVs on the environment - for example, one ad stated Like this snowy wilderness? Better get your fill of it now. Then say hello to global warming.
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Subway sued Quiznos and the website that ran the contest. Lawsuit generated a lot of negative publicity for Quiznos.
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fan character page named Woody. If he could get 500,000 facebook fans by September 30th, 2009 then the first 500,000 would be entitled to a free burger or sandwich.
500,000 fans goal was reached by September 13th. TGI Friday's could not keep up with the coupon demand and
the fans reacted harshly as many did not receive the coupon as promised. fans they had built up on the fan page.
TGI Friday's pulled down the campaign and abandoned all the
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a free whopper.
discreetly, the Whopper Sacrifice application told people that were unfriended that they had been traded in for a burger. shut down.
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write the blog. Wal-Mart paid for the RV rental, gas and a freelance writing fee. misleading representation of a testimonial.
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from Twitter, Facebook, Wikipedia, Youtube, Flickr, where users could add their own messages and interact online.
for tweets in the Twitter section which included explicit sexual comments and derogatory remarks about the brand.
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Topics
Consumer Research
truthful advertising
is accurate; does not exaggerate; facts are verifiable; key details are not hidden; does not mislead; is clear
acceptable advertising
Is not offensive, demeaning, prejudicial or discriminating; does not prey on peoples vulnerabilities; does not promote excessive violence; does not try to manipulate kids; is appropriately placed given the target groups that could be exposed to it
advertising regulation
is not top of mind with consumers; but consumers say should be done by an independent organization vs. government or industry
consumers say its important to have rules for advertising and most believe rules in place
Considerations
Dont assume there are no rules Consider applicability of Canadian Code of Advertising Standards:
is the message controlled directly or indirectly by the advertiser? is the message communicated to Canadians? Is the message intended to influence choice, opinion or behaviour?
Considerations
Exercise particular caution with online executions for child audiences Clause 12 (Advertising to Children):
Advertising directed to children must not exploit their credulity, lack of experience or sense of loyalty, and must not present information or illustrations that might result in their physical, emotional or moral harm