Enterprise toronto   nov 2011 - marketing in web2-0 world
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Enterprise toronto nov 2011 - marketing in web2-0 world

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  • Century 21 case: Zoocasa was found in breach of copyright and in breach of terms of use of Century 21’s website. No fair dealing defence.

Enterprise toronto   nov 2011 - marketing in web2-0 world Enterprise toronto nov 2011 - marketing in web2-0 world Presentation Transcript

  • Enterprise Toronto Legal Issues – Marketing in a Web 2.0 World Presented by: Rubsun Ho [email_address] @rubsun November 7, 2011
  • What’s a legal session without a disclaimer?
    • The information provided in this presentation represents a general overview and understanding of intellectual property issues. It is not intended to be used as legal advice. Any application of the contents of this seminar in the context of a specific business should entail further legal consultation and consideration.
    © 2011 Cognition LLP
  • About Cognition
    • Founded in recognition of the fact that traditional legal services model was too expensive for startups and growth companies
    • Virtual model means lower overhead and lower rates
    • Former In House lawyers (e.g. Canadian Tire, RIM, Nortel, Sun Microsystems, etc.) who also practiced on Bay St (e.g. Gowlings, Stikemans, Oslers)
    • 32 lawyers in Toronto & Ottawa
    © 2011 Cognition LLP
  • Marketing in a Web 2.0 World - Legal Issues to Watch Out For
    • Email marketing and Anti-Spam Laws
    • User Generated Reviews
    • Marketing with Social Media
    • Trademark Protection in an Online World
    © 2011 Cognition LLP
  • Email Marketing & Anti-Spam Laws © 2011 Cognition LLP
  • Email Marketing & Anti-Spam Laws
    • Marketing: “An email newsletter would be an ideal way to promote our products and connect with our customers. And its cheap.”
    • You: “Sounds good. How will we create a distribution list?”
    • Marketing: “Bah. There are a million places where we can collect email addresses. That’s why it’s so cost effective!”
    © 2011 Cognition LLP
  • Email Marketing & Anti-Spam Laws
    • Bill C-28 – Canada’s Anti-Spam Legislation
    • Expected to come into force early 2012
    • Things to pay attention to:
      • Opt-in requirement – recipient of electronic message must have consented to receiving it
      • Message must have unsubscribe mechanism – max 2 clicks
      • Will apply to text messages, twitter messages, and other electronic messages
      • Each message is supposed to contain contact info, including physical address and phone #
    © 2011 Cognition LLP
  • Email Marketing & Anti-Spam Laws
    • Exceptions to Opt-In Requirement
    • Existing business relationship – active in the last few years
    • Met in Person
    • Relevant messages to published email addresses so long as there is no statement that they do not want to receive messages.
    • Potential Liability
    • Administrative monetary penalty
    • Private right of action to apply to court
    • Potential class action threat
    © 2011 Cognition LLP
  • Email Marketing & Anti-Spam Laws
    • TO DO’s:
    • Potentially purge mailing lists of individuals who have not given consent or do not fall under an exception
    • Ensure that there is a consent mechanism in gathering email addresses
    • Ensure that there is an easy opt-out mechanism in managing your mailing lists.
    • Set out policies and training programs to ensure that employees and agencies comply
    © 2011 Cognition LLP
  • User Generated Reviews © 2011 Cognition LLP
  • User Generated Reviews
    • User generated content and reviews are becoming a common Web 2.0 marketing tool.
    • Examples:
    • Ecommerce sites like Canadian Tire & Amazon.com that allow users to rate and comment on specific products
    • Review sites such as Yelp, Homestars.com and TripAdvisor
    • Services such as iTunes that encourage users to rate the apps on the site
    • Facebook pages where consumers can post comments about a company or its products and services
    • Blog posts and related social media that allow for user comments and replies
    • Can be in the form of text or video
    © 2011 Cognition LLP
  • User Generated Reviews
    • “ Fake reviews prompt Belkin apology”
    © 2011 Cognition LLP “ Cornell software fingers fake online reviews” “ In a Race to Out-Rave, 5-Star Web Reviews Go for $5” “ TripAdvisor removes 'reviews you can trust' slogan from its website” “ Judge Dismisses Yelp Class Action, Bolsters Web Publisher Immunity”
  • User Generated Reviews
    • Legal Issues: Copyright
    • What if a user uploads copyrighted material in posting the review?
    • The website operator may be liable as well as the user
      • Some defences are available in Canada (fair dealing) and the US (fair use) – e.g. criticism, research, news reporting, parody
      • Immunity from liability also available if website is merely a conduit and is unaware of offending content and removes the content upon becoming aware of it.
      • In the US, there are specific notice and take down provisions
    © 2011 Cognition LLP
  • User Generated Reviews
    • Legal Issues: Defamation
    • What if a user uploads materials or comments that are defamatory to another individual?
    • For a defamation claim to succeed, there must be “publication”, which can occur over the Internet
    • As a website operator, you may be considered to be the “publisher” of the defamatory material
      • A very recent Canadian case held that providing a hyperlink to defamatory material does not constitute publishing that material
      • Generally, in the US, a website operator is not liable for a third party’s defamatory postings.
    © 2011 Cognition LLP
  • User Generated Reviews
    • Legal Issues: False Reviews
    • What if a user posts fake reviews to pump a product or service?
    • What if a company pays a blogger or website to promote its products?
    • There are general competition laws that prohibit deceptive commercial practices and false or misleading representations
    • Advertising guidelines and codes of conduct provide that material connections between endorsers of a product and the manufacturer of the product should be disclosed.
    • Given the ubiquity of the Internet, your web marketing programs may be subject to guidelines of multiple jurisdictions
    © 2011 Cognition LLP
  • User Generated Reviews
    • TO DO’s:
    • Ensure that your terms and conditions prohibit posting of copyright and/or defamatory materials
    • Put in a proper regime for dealing with copyright or defamation complaints and taking down offending content
    • Adhere to these terms and policies rigorously
    • Do not actively promote or create conditions that promote copyright infringement or posting of defamatory material
    • Do not post fake reviews!!
    • If you are posting reviews or using review sites to promote your products, ensure that any material connections, payments or free samples/services are disclosed
    © 2011 Cognition LLP
  • Social Media Marketing © 2011 Cognition LLP
  • Social Media Marketing
    • Twitter / YouTube / Facebook / Blogs / Podcasts / LinkedIn / Yelp / etc. / etc.
    • Hundreds of spontaneous, individualistic, high volume messages about your brand are being distributed every day
    © 2011 Cognition LLP
  • Social Media Marketing
    • How do you maintain trust and goodwill among your clients and customers?
    • Be wary of copyright infringement, potential defamation, violation of advertising guidelines
    • Watch for brand-squatting – others using your brand as a handle on Twitter or registering the subdomain on Facebook
    • Educate your marketing department & employees on what is acceptable when interacting on social media
    © 2011 Cognition LLP
  • Social Media Marketing
    • TO DOs
    • Claim your brands on social media sites (@yourbrand, www.facebook.com/yourbrand )
    • Institute a comprehensive social media policy
    • Have someone review and implement FTC endorsement guidelines
    • Review DMCA
    • Monitor Social Media Networks
    © 2011 Cognition LLP
  • Social Media Marketing
    • Resources
    • FTC Endorsement Guidelines
    • http://www.ftc.gov/multimedia/video/business/endorsement-guides.shtm
    • Word of Mouth Marketing Association:
    • http://womma.org/about/
    • Best practices for social media policies
    • http://bit.ly/99kHPC
    © 2011 Cognition LLP
  • Trademark Protection in an Online World
    • Trademarks: words, logos or symbols that identify your products or services and distinguish them from those of others.
    © 2011 Cognition LLP
  • Trademark Protection in an Online World
    • Where your trademarks be at risk:
    • Brand squatting (Twitter handles, vanity url’s)
    • Fan pages
    • Gripe pages
    • .xxx top level domains (e.g. www.yourbrand.xxx )
    • Competitors using your trademarks for keyword advertising
    © 2011 Cognition LLP
  • Trademark Protection in an Online World
    • TO DOs:
    • Register twitter handles & vanity URLs for your company name and product/brand names
    • Register all top-level domains
    • Familiarize yourself with .xxx domain process
    • Monitor social media sites (e.g. Google alerts)
    • Monitor keyword advertising (Google, LinkedIn)
    © 2011 Cognition LLP
  • Trademark Protection in an Online World
    • TO DOs:
    • If there are offenders:
      • Negotiate with any known offenders (perhaps engage them)
      • Follow social media site’s infringement policies
      • Send cease and desist letter
    © 2011 Cognition LLP
  • Thank you. www.cognitionllp.com Rubsun Ho [email_address] 416-348-0313, ext. 102 rubsunho @rubsun
  • Copyright
    • Copyright is a form of protection allowing the owner of the rights in a work to prevent others from copying, displaying or performing the work.
    • The work must be original.
    • Absent a contractual arrangement, the author owns the copyright (an employer is deemed the author of any work created by an employee)
    • Registration is not necessary, but can be helpful.
    • Use of copyright notice not necessary but helpful:
    • (C) [Year of first publication] [Owner]
    © 2011 Cognition LLP
  • Copyright
    • Copyright doesn’t protect the idea, but the expression of the idea.
    • Open source software is still subject to copyright and must be licensed
    • Any music and images used for promotional purposes is likely subject to copyright and must be licensed.
    • Century 21 Canada Limited Partnership v. Rogers Communications Inc . – Zoocasa found liable for scraping content from Century 21 website and reproducing it
    © 2011 Cognition LLP