Compliance. It’s More than a Buzz Word Moderator Steven Richter, President & General Counsel, Media Breakaway, LLC Panelists Sanj Goyle, Sr. Director of Lead Generation, Yahoo, Inc. Carolyn Hodge, VP of Communications, TRUSTe Gary Kibel, Partner, Davis & Gilbert LLP

Our Goal: 100% Compliance

Our Goal: 100% Compliance

Be Proactive Prepare (To Be Compliant) Keep current regarding compliance statutes, case law, regulations & industry standards and support industry wide compliance practices Prevent (Being Non-Compliant) Thorough Affiliate & Advertiser application process Protect (Your Integrity) Identify compliance issues and take appropriate action

Prepare (To Be Compliant)

Keep current regarding compliance statutes, case law, regulations & industry standards and support industry wide compliance practices

Prevent (Being Non-Compliant)

Thorough Affiliate & Advertiser application process

Protect (Your Integrity)

Identify compliance issues and take appropriate action

Compliance. It’s More than a Buzz Word Gary Kibel Partner Davis & Gilbert, LLP

Can Spam – Enforcement Actions FTC v. Cleverlink (July 2006) Defendant’s “date lonely wives” spam violated nearly every provision of Can Spam: Contained misleading headers and deceptive subject lines Failed to allow consumers to opt-out Failed to contain a physical address Did not label the content “SEXUALLY-EXPLICIT” Defendants order to pay $2,635,000 (reduced to $303,000 based upon available assets) Prepare

FTC v. Cleverlink

(July 2006)

Defendant’s “date lonely wives” spam violated nearly every provision of Can Spam:

Contained misleading headers and deceptive subject lines

Failed to allow consumers to opt-out

Failed to contain a physical address

Did not label the content “SEXUALLY-EXPLICIT”

Defendants order to pay $2,635,000 (reduced to $303,000 based upon available assets)

Defendant ordered to sell 2001 Dodge Viper Prepare

Affiliate Monitoring Program Stipulated Affiliate Monitoring Program Obtain Affiliate’s name , physical address, tel #, email, DOB & bank account info. Provide each Affiliate a copy of the FTC-Cleverlink Order . Obtain from each Affiliate a written agreement to comply with the FTC Order and CAN SPAM. Put email address on first page consumer visits for reporting violations. Comply with all industry standards . Investigate all consumer complaints. Require consumers to indicate how procured (i.e., email, banner). Immediately terminate any Affiliate who violates Cleverlink’s contract, CAN SPAM or the FTC Order. Notify all Affiliates that violations will result in immediate termination and forfeiture of all monies earned. Provide links to Cleverlink’s commercial email policy . Require Affiliates to maintain records to prove compliance. Prepare

Stipulated Affiliate Monitoring Program

Obtain Affiliate’s name , physical address, tel #, email, DOB & bank account info.

Provide each Affiliate a copy of the FTC-Cleverlink Order .

Obtain from each Affiliate a written agreement to comply with the FTC Order and CAN SPAM.

Put email address on first page consumer visits for reporting violations.

Comply with all industry standards .

Investigate all consumer complaints.

Require consumers to indicate how procured (i.e., email, banner).

Immediately terminate any Affiliate who violates Cleverlink’s contract, CAN SPAM or the FTC Order.

Notify all Affiliates that violations will result in immediate termination and forfeiture of all monies earned.

Provide links to Cleverlink’s commercial email policy .

Require Affiliates to maintain records to prove compliance.

Affiliate Liability? - NO FTC v. Impulse Media (May 2008) Defendant’s affiliate program terms prohibited email. Defendant provided affiliates with creative materials. Court/Jury held that Impulse Media did not “initiate” the spam. “ The Court rejects plaintiff’s effort to characterize the CAN-SPAM Act as a strict liability statute……the plain language of the Act requires that plaintiff prove that defendant intentionally paid or induced another party to undertake the specific act of sending a commercial email.” Prepare

FTC v. Impulse Media

(May 2008)

Defendant’s affiliate program terms prohibited email.

Defendant provided affiliates with creative materials.

Court/Jury held that Impulse Media did not “initiate” the spam.

“ The Court rejects plaintiff’s effort to characterize the CAN-SPAM Act as a strict liability statute……the plain language of the Act requires that plaintiff prove that defendant intentionally paid or induced another party to undertake the specific act of sending a commercial email.”

Enforceability Concerns Greer v. 1-800 Flowers.Com Inc. (Texas – 2007) Facts Internal Procedures Website Privacy Policy Prepare

Greer v. 1-800 Flowers.Com Inc. (Texas – 2007)

Facts

Internal Procedures

Website Privacy Policy

Compliance. It’s More than a Buzz Word Sanj Goyle Sr. Director of Lead Generation Yahoo! Inc.

Yahoo! Mail Feedback Loops The current Yahoo! Mail feedback loop program is temporarily shut down. An improved, streamlined and AUTOMATED system will be launching by the end of September. http://help.yahoo.com/l/us/yahoo/mail/postmaster/ Prepare How does Yahoo! Mail help senders minimize complaint rates?

Yahoo! Mail White Lists Senders undergo a subjective evaluation by Yahoo!’s Mail team. Two major factors are considered: Quantity of mail being sent from servers Number of complaints received by users Prepare How does a sender get on Yahoo! Mail’s White List? Yahoo! Mail protects its users against unwanted mail, regardless if they have opted-in or not. The SENDER must ensure that their opt-ins are properly disclosed and meaningful.

Senders undergo a subjective evaluation by Yahoo!’s Mail team.

Two major factors are considered:

Quantity of mail being sent from servers

Number of complaints received by users

Guidelines and Best Practices Prepare http://help.yahoo.com/l/us/yahoo/mail/postmaster/ http://www.maawg.org/about/MAAWG_Sender_BCP

Compliance. It’s More than a Buzz Word Carolyn Hodge VP of Communications TRUSTe

TRUSTe: Self Regulation and Certification Certification to standards, monitoring and enforcement for publishers/ 2,000 consumer websites and their service providers and ~24 software publishers (ComScore, Conduit, WeatherBug, Coupons) Get to know the rules of the road for consumer data collection and privacy (TRUSTe, NAI, IAB, OPA) For lead collection the seal of approval can lift registrations by 20+%, for consumer brands collecting data 3-5% increase Prepare

Certification to standards, monitoring and enforcement for publishers/ 2,000 consumer websites and their service providers and ~24 software publishers (ComScore, Conduit, WeatherBug, Coupons)

Get to know the rules of the road for consumer data collection and privacy (TRUSTe, NAI, IAB, OPA)

For lead collection the seal of approval can lift registrations by 20+%, for consumer brands collecting data 3-5% increase

TRUSTe Best Practices DO know where your brand is being distributed and promoted. DO implement security and audit measures to verify correct notices are presented to consumers by affiliates and distribution partners. DO implement security and audit measures to verify that consent is obtained from the consumer prior download or engagement. DO have a contract with your distribution and promotion partners that binds them to good practices. DON'T assume a contract with your distribution partners or affiliates fully protects you. It's still your responsibility to monitor their practices for compliance. Develop a monitoring and alert scheme for monitoring affiliates or distributors Enforce similar monitoring contractually on affiliates, distributors, and sub-affiliates Prepare

DO know where your brand is being distributed and promoted.

DO implement security and audit measures to verify correct notices are presented to consumers by affiliates and distribution partners.

DO implement security and audit measures to verify that consent is obtained from the consumer prior download or engagement.

DO have a contract with your distribution and promotion partners that binds them to good practices.

DON'T assume a contract with your distribution partners or affiliates fully protects you. It's still your responsibility to monitor their practices for compliance.

Develop a monitoring and alert scheme for monitoring affiliates or distributors

Enforce similar monitoring contractually on affiliates, distributors, and sub-affiliates

Compliance & Enforcement Trends Increasing consumer privacy complaints Majority of serious compliance issues for websites result from partner or affiliate slip–ups TDP Monitors 3 major affiliate networks for 24 companies For software distributors all serious enforcement actions were rogue distribution or low distribution controls Miva A lot Toolbar, Rabio SearchHancer and ComScore Relevant Knowledge Prepare

Increasing consumer privacy complaints

Majority of serious compliance issues for websites result from partner or affiliate slip–ups

TDP Monitors 3 major affiliate networks for 24 companies

For software distributors all serious enforcement actions were rogue distribution or low distribution controls

Miva A lot Toolbar, Rabio SearchHancer and ComScore Relevant Knowledge

Prevent Ringtone Checklist Pending Affiliate Checklist Ad Checklist Ringtones Marketing Guidelines

Protect Termination Notice Compliance Review Affiliate Agreement

Q&A

Q&A