Download advertising, marketing, and promotion in the digital age

ADVERTISING, MARKETING, AND
PROMOTION IN THE DIGITAL AGE
5 AUGUST 2015
Corby Anderson
[email protected]
WHY USE SOCIAL MEDIA?
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Provide exposure for a brand
Engage customers in conversation
Gain knowledge of markets
Build loyalty of existing customers
Attract new customers
Expand avenues for cost-effective advertising
Generate a “buzz”
Give and get information quickly
Hear new ideas
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USING SOCIAL MEDIA EFFECTIVELY
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Involve others outside of marketing:
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HR, IT, Operations, Sales, Legal
Know where your audience connects
Know what’s being said about you
Be proactive
Get comfortable with user-generated content
Involve other forms of media
As with any good relationship, make the effort
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SOCIAL MEDIA INVOLVES RISKS
‣ A conversation, not a monologue
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Easy to start, hard to control.
‣ Infringement
‣ Defamation
‣ Breach of privacy
‣ Loss of proprietary information
‣ False advertising
‣ Damage to the brand
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FALSE ADVERTISING
‣ FTC Act prohibits “deceptive and unfair” ads
‣ Deceptive: likely to mislead, affect decisions
‣ Unfair: substantial, unavoidable injury, not
outweighed by other benefits
‣ “Astroturfing” – artificially creating a grassroots
buzz for a product or service
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FALSE ADVERTISING
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Endorsements and testimonials
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Disclose material connections between endorser and
seller:
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Money
Free or loaner products or services
In-kind gifts
Special access privileges
Employment relationships
Tweets not excluded because of length
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#spon, #paid, #samp
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FALSE ADVERTISING
#WanderingSole and the FTC
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NATIVE ADVERTISING
‣ Blurred lines between content and advertising
‣ Use information that is “editorial” in
appearance to promote a product
‣ Early forms:
Infomercials, advertorials, product
placements (Reese’s Pieces in E.T.)
‣ Current forms:
Google sponsored search
results, Buzzfeed featured partner posts,
Facebook suggested posts
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NATIVE ADVERTISING
‣ Interactive Advertising Bureau (IAB) issued
Native Advertising Playbook
‣ Clarity and prominence of disclosure are key
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The Atlantic’s publication of feature on Church of
Scientology
‣ Use language that conveys that advertising has
been paid for
‣ Make disclosure large and visible enough for
consumer to notice it
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COPYRIGHT INFRINGEMENT
‣ U.S. Copyright Act prohibits unauthorized use of
copyrighted material
‣ Digital Millennium Copyright Act protects online
service providers from infringement liability based
on content posted by others
‣ Must have designated agent to field claims
‣ Must have notice and take-down procedure
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COPYRIGHT INFRINGEMENT
Digital watermarking
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COPYRIGHT INFRINGEMENT
‣ Memes
‣ From the Greek mimëma,
“something imitated”
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North Jersey Media Group, Inc. v.
Jeanine Pirro & Fox News Network,
Civil No. 1:13-cv-07153 (S.D.N.Y.)
Fox News production assistant
posted pictures on Facebook page
for its show Justice with Judge
Jeanine
Fox News’ motion for summary
judgment was denied; court could
not conclude this was fair use
Case settled in April 2015
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MORE MEMES
‣ Ryan Gosling Pinterest Meme Campaign
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TRADEMARK INFRINGEMENT
‣ Lanham Act prohibits unauthorized use of trademark
that is likely to cause confusion, mistake, or deception
‣ Use must be in commerce
‣ No “safe harbor” statutes for trademarks, unlike
DMCA for copyrights and CDA for defamation
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Traditional infringement
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“twitter.com/louisvuitton” vs “twitter.com/louisvuitton_us”
Dilution (if a famous mark) by blurring or tarnishment
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TRADEMARK INFRINGEMENT
‣ Safeguards:
‣ Register brand as usernames on social media
platforms
‣ Create presence on social media platforms
‣ Monitor others’ use of marks on social media
‣ Set enforcement strategy
‣ Heavy-handed approach can backfire
‣ Revise legal agreements to address online uses of
marks
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RIGHT OF PUBLICITY
‣ State laws prohibit
‣ Misappropriation of
right of publicity
‣ Unfair trade practices
‣ Katherine Heigl sued
Duane Reade for
posting a photo of her
on Twitter and Facebook
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DEFAMATION / DISPARAGEMENT
‣ Defamation is governed by state law
‣ Product disparagement is governed by state law
‣ Communications Decency Act
‣ Interactive computer service providers are not
treated as publishers of content posted
‣ Content providers are not protected
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COMMUNICATIONS DECENCY ACT
“This legal and policy framework has allowed
for YouTube and Vimeo users to upload their
own videos, Amazon and Yelp to offer
countless user reviews, Craigslist to host
classified ads, and Facebook and Twitter to
offer social networking to hundreds of
millions of Internet users.”
Electronic Frontier Foundation, April 2015
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PRIVACY RIGHTS
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Privacy laws govern businesses’ collection, use, sharing of
information about people
Three types of information
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Personally identifiable
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Non personally identifiable
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Name, account numbers, Social Security number, phone
number, full postal address, e-mail address
Gender, age, area code, zip code
“Persistent identifiers”
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Non personally identifiable information that, when linked
with other data, can effectively identify a person
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PRIVACY RIGHTS
“When the Smiths of
Missouri – an AllAmerican family with
the regulation two
blond children- posed
for their Christmas
photo, little did they
know they would end
up on a billboard
thousands of miles
away in the Czech
Republic.”
from The Guardian
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BEHAVIORAL ADVERTISING
‣ Self-regulatory principles:
‣ Education
‣ Transparency
‣ Consumer Control
‣ Data Security
‣ Material Changes to Policies and Practices
‣ Sensitive Data
‣ Accountability
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PRIVACY RIGHTS
‣ Ditto “looks inside photos” on Twitter, Instagram, and
Tumblr to “glean insights” such as:
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Where and how people use products
Correlations between interests, such as which beverages
people drink while eating Kraft macaroni and cheese
Logos: the marketer’s own brands and rival brands
Background scenery, to give clues of how and where
products are used
Who would be “the most influential advocates” for a brand
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PRIVACY RIGHTS
‣ Does Ditto’s technology make people “a walking
laboratory for brands”?
“Critics say companies such as Instagram, Pinterest
and Tumblr are not doing enough to advise their users
on how their content is being used. . . . The reality is: Do
not count on any government agency clamping down on
these usage policies anytime soon. The best solutions
are to jump off these channels, be careful about what
you post, or as in my case with Facebook, be coy about
what you like. Based on my “likes,” Facebook always
shows me testimonials related to tampons, the NRA
and the Tea Party. Enough said.” – Blogger Leon Kaye
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LAWS THAT PROTECT PRIVACY
‣ Data privacy laws govern businesses’ collection,
use, and sharing of information about individuals
‣ Federal, state, foreign laws apply
‣ Laws govern both physical and electronic
security of information
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CHILDREN’S PRIVACY (COPPA)
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Applies to operators of commercial websites, online
services that collect information from children under 13
Requires reasonable efforts to notify, get verifiable consent
of parent or guardian
Requires notice of information collected from children, how
it is used, how it is shared
Prohibits conditioning child’s participation in an activity on
disclosure of more PI than is necessary
Amendments effective July 1, 2013
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Include geo-location information, photos, and videos in
types of PI that cannot be collected without parental
notice, consent
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CAN-SPAM ACT
‣ Controlling the Assault of Non-Solicited
Pornography and Marketing
‣ Prohibits fraudulent, abusive, deceptive
commercial email
‣ “One-bite” rule:
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Business may send unsolicited commercial email
message, properly labeled, to consumer, with easy
means for consumer to opt out. If the consumer opts
out, business may no longer send emails
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CAN-SPAM ACT
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Commercial email broadly defined as having primary
purpose to advertise or promote commercial product or
service
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Does not apply to transactional emails, which
facilitate or give update on agreed-upon transaction
Business must monitor third party handling email
marketing to ensure compliance
Pre-empts state statutes, but states may enforce
sections of Act addressing fraudulent or deceptive
acts, computer crimes, other advertising restrictions
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CAN-SPAM ACT
‣ Don’t use false or misleading header information
‣ Don’t use deceptive subject lines
‣ Identify the message as an ad
‣ Tell recipients where you’re located
‣ Tell recipients how to opt out
‣ Honor opt-out requests promptly
‣ Monitor what others are doing on your behalf
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TELEPHONE CONSUMER PROTECTION ACT
‣ Established national “Do Not Call” registry
‣ Regulates use of “automated telephone
equipment” such as auto-dialers, artificial or prerecorded voice messages, fax machines
‣ Prohibits transmission of a “call” using an
“automatic telephone dialing system” without
prior consent of called party
‣ Per FCC, “call” covers both voice calls and text
messages (even texts for which called party is
not charged)
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TELEPHONE CONSUMER PROTECTION ACT
Papa John’s
agreed to pay
$16.5 million to
settle class action
over claims that it
sent unauthorized
texts to customers
in violation of
TCPA
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HASHTAG BRANDING
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HASHTAG BRANDING
Check to confirm why an item is trending before
joining in.
Entenmanns’
Tweet on the day
when the Casey
Anthony verdict
was handed down:
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HASHTAG BRANDING
Unanticipated results:
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CONTROLLING DAMAGE TO BRAND
‣ How to manage a brand crisis:
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Have crisis management plan in place
Monitor for complaints, problems
Act quickly
Take responsibility from the start
Don’t get defensive, tell your good story, if there is one
“Put out the fire” with the same media that started it
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SOCIAL MEDIA POLICIES
‣ Why have a policy?
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Ensures brand consistency
Promotes effective use of social media platforms
Minimizes risk of liability
Protects confidential information
Allows for quick action if a brand crisis arises
Keeps in step with changes in laws, rules, technology,
consumer behavior
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SOCIAL MEDIA POLICIES
‣ What should a policy cover?
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Use of name and marks on all platforms
Transparency in endorsements, testimonials
Protecting against unfair, deceptive advertising
Protecting privacy, confidential information
Avoiding infringement
Avoiding defamation, disparagement
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SOCIAL MEDIA POLICIES
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Employees’ use of social media:
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No disparagement of customers
No disclosure of confidential information
For work-related use, require
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Disclosure of employee status
Disclaimer that views are employee’s, not company’s
Consider state “off duty laws”
Consider recent NLRB decisions against restrictions on
employees’ speech
What happens to employee sites when employment ends?
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‘THE ROAD [BEST] NOT TAKEN’
General Mills recently posted a revised set of Legal Terms on our websites. Those terms
– and our intentions – were widely misread, causing concern among consumers. So
we’ve listened – and we’re changing them back to what they were before. We rarely
have disputes with consumers – and arbitration would have simply streamlined how
complaints are handled. Many companies do the same, and we felt it would be helpful.
But consumers didn’t like it. So we’ve reverted back to our prior terms. . . . We stipulate
for all purposes that our recent Legal Terms have been terminated, that the arbitration
provisions are void, and that they are not, and never have been, of any legal effect. That
last bit is from our lawyers. We’ll just add that we never imagined this reaction. Similar
terms are common in all sorts of consumer contracts, and arbitration clauses don’t
cause anyone to waive a valid legal claim. . . . At no time was anyone ever precluded
from suing us by purchasing one of our products at a store or liking one of our Facebook
pages. That was either a mischaracterization – or just very misunderstood. Not that any
of that matters now. On behalf of our company and our brands, we would also like to
apologize. We’re sorry we even started down this path. And we do hope you’ll accept
our apology. We also hope that you’ll continue to download product coupons, talk to us
on social media, or look for recipes on our websites.
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SELFIES!
Ellen DeGeneres set a record for the most re-tweets of a
single post – just over 3,000,000.
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SELFIES!
Boston Red Sox David Ortiz
snaps a selfie with President
Obama on his Samsung
smart phone.
Ortiz Tweets the photo,
Samsung retweets it.
Unbeknownst to the White
House, Samsung had signed
Ortiz to be its MLB Social
Media Insider.
Oops.
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QUESTIONS?
Contact Me
Corby Anderson
(704) 338-5331
[email protected]
© Nexsen Pruet, PLLC 2015
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