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Mobile Marketing - Your guide to legal compliance from concept to activation


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In this presentation, Margot Patterson from Dentons, goes through the legal compliance issues to watch out for when working on mobile advertising via display, apps, voice and text messaging.

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Mobile Marketing - Your guide to legal compliance from concept to activation

  1. 1. Mobile marketing Your guide to legal compliance from concept to activation February 2015
  2. 2. Mobile marketing means… Format Focus Examples Display / Sponsorship Advertising Mobile apps Mobile optimized sites • banner ads • “brought to you by” • take-overs • video pre-roll Text / Voice Messaging SMS (Short Messaging Service) MMS (Multimedia Messaging Service) IVR (Interactive Voice Response) • standard rate messaging • premium rate messaging (vote, donate, download) Search Search directed at mobile users • directories (yellow pages) • ratings (restaurants) Performance Mobile user action • CPC (cost-per-click) • CPA (cost-per-action) • CPD (cost-per-download) • “apply now” • surveys • downloads • opt-in for texts or emails 05/03/2015 2
  3. 3. Mobile Marketing † 05/03/2015 3 Mobile marketing is “surging” † Your marketing has changed... but the law has not What does this mean for you?
  4. 4. Mobile marketing legal issues 1. You and your developer • The Service Agreement 2. You and the app store • Key legal guidelines 3. You and your co-sponsor • The Sponsorship Agreement 4. Marketing to the consumer • Disclosures • Privacy • Anti-Spam (CASL) • Contests • Mobile commerce 05/03/2015 4
  5. 5. You and your Developer 05/03/2015 The Service Agreement Mobile-specific issues 5
  6. 6. You and your Developer Mobile-specific issues The Service Agreement Intellectual Property 05/03/2015 Issue Comment Ownership of the App • Licence ≠ Ownership • Licence = Permission to use • Any element to be transferred to you must be assigned, with a moral rights waiver Scope of Licence • For specific project only? • For specific geographic area only? Exclusivity • Do you expect exclusive use of code? Icons, Licensed Photos, Other Contributions • Representation & warranty that Developer has rights to all contributions Trade-marks • Obtain assignment of artwork and designs to you for trade-mark use and registration 6
  7. 7. You and your Developer Mobile-specific issues The Service Agreement Responsive design – Cross-platform • What are your expectations, and Developer’s commitments, for creative or user interface elements that may be challenging to achieve on mobile? Security and authentication • Data security is a key concern for mobile • Consider your needs for: • secure client-server communication • data encryption • offline authentication 05/03/2015 7
  8. 8. You and your Developer Mobile-specific issues The Service Agreement Confidentiality • Protect your brand and your campaign through confidentiality clauses or a Non-Disclosure Agreement (NDA) Liability for failure, breach of laws • Consider the scope of liability for failure to perform, violation of laws Conflict of Interest / Non-compete • Competitive product or service? Time sensitive campaign? Consider tailored conflict of interest and / or non-compete clauses 05/03/2015 8
  9. 9. You and the app store 05/03/2015 Key legal guidelines 9
  10. 10. You and the app store Key legal guidelines App store review guidelines: Key legal requirements for marketing – general • No apps that are primarily marketing materials or advertisements • Obtain user consent before collecting, transmitting, using location data • No Push Notifications to send advertising, promotions, direct marketing • Comply with all legal requirements wherever app is made available to users: Developer must understand and conform to all local laws • No false, fraudulent or misleading representations • Kids Category apps: no user behavioural advertising (OBA) 05/03/2015 10
  11. 11. You and the app store Key legal guidelines App store review guidelines: Key legal requirements for marketing – privacy • No transmission of data about a user without informed consent • Limits on requiring email address and date of birth • Compliance with applicable children’s privacy statutes • Privacy policy required for apps that include account registration 05/03/2015 11
  12. 12. You and the app store Key legal guidelines Google Play Developer Key legal requirements for marketing • Obtain user consent before collecting user location or behaviour data • Ads must not simulate or impersonate the user interface of any app • Specific restrictions on use of Android advertising ID (user-specific ID for advertising), including: • usage for advertising and analytics; • user opt-out and respecting users’ selections; • association with personal information; and • transparency to users. 05/03/2015 12
  13. 13. You and your co-sponsor 05/03/2015 The Sponsorship Agreement Mobile-Specific issues 13
  14. 14. You and your co-sponsor Mobile-specific issues Intellectual property is valuable. IP rights should be clear. In addition to the “usual” licences to use each other’s brands, consider: • specifying who owns new brand elements, logos to be developed for the mobile campaign; and • specifying who owns the mobile app and design elements. Privacy. If you collect personal information from users, consider: • is the co-sponsor entitled to receive and use the personal information? If so, your agreement should cover off privacy and anti-spam law compliance, liability, and indemnity. 05/03/2015 14
  15. 15. You and your co-sponsor Mobile-specific issues Mobile development takes time. Consider: • specifying how much sign-off authority each party has; and • building in enough time for review and sign-off by the other party (“timely and reasonable” or more specific?). Mobile is changing fast. If your agreement is long-term, consider: • providing that you and your co-sponsor may amend specified technologies over time; and • providing for a periodic review of the sponsorship rights. 05/03/2015 15
  16. 16. Marketing to the mobile user 05/03/2015 Disclosures Privacy CASL Contests Mobile commerce 16
  17. 17. Marketing to the mobile user Disclosures Privacy Anti-Spam (CASL) Contests Mobile Commerce 05/03/2015 17
  18. 18. Marketing to the mobile user Disclosures The Competition Act applies “regardless of the medium” Representations about the product / service must be accurate & fair: • Including text, images, illustrations and audio • Statements about product performance, efficacy or length of life must be based on an “adequate and proper test” Representations about your business must be accurate & fair: • Text, graphics, logos, must not mislead the user about affiliations, sponsorship, endorsement Implications for mobile: • Limited space means that a lot more is riding on your text and visuals 05/03/2015 18
  19. 19. Marketing to the mobile user Disclosures 05/03/2015 • Prominent disclaimer – don’t bury or hide • Accessible disclaimer – regardless of technology • Repeat disclaimer if necessary – e.g. call to action page + ordering page • Use “click here for restrictions” or symbols (* or †) to indicate that disclaimer is below – particularly where it’s below the fold • See: Application of the Competition Act to Representations on the Internet, Enforcement Guidelines bc.nsf/eng/03134.html Call to Action* One Week Only Act now! *Disclaimer text. Up to 40% off Menu Cart + 19
  20. 20. Marketing to the mobile user Disclosures Privacy Anti-Spam (CASL) Contests Mobile Commerce 05/03/2015 20
  21. 21. Marketing to the mobile user Privacy Office of the Privacy Commissioner of Canada is increasingly active on mobile issues • Global privacy sweep raises concerns about mobile apps • Office of the Privacy Commissioner of Canada, Alberta Information and Privacy Commission, British Columbia Information and Privacy Commissioner: Seizing Opportunity: Good Privacy Practices for Developing Mobile Apps • OPC Guidance - Communicating Privacy Practices to Your App's Users • OPC Guidance – Policy Position on Online Behavioural Advertising 05/03/2015 21
  22. 22. Marketing to the mobile user Privacy 05/03/2015 • Informed consent • Layered notices • Just-in-time notice • Opt-out Notice and Consent • Just-in-time notice • Disclose purpose: Function? Ads? • Opt-out Geolocation • Just-in-time notice • Opt-out • Avoid sensitive PI • Destroy / de-identify ASAP Behavioural tracking • Explain what data you collect, how you use it Social Media login • Parental settings • No geolocation, OBA collection Children • Encryption • Hashing • Retention policy • Destruction ASAP Data Security 22
  23. 23. Marketing to the mobile user Privacy 8 Best Practices 1. Build privacy into your app / campaign / program from the start 2. Decide what personal information you really need 3. Consider a privacy dashboard – clear and easy user customization 4. Make privacy information and policies easy to find 5. Layer privacy information – key points + click-through to detail 6. Remember: combining user data from different sources can enable individuals to be identified (UDID, location, etc.) = Personal Info 7. Apply appropriate security standards and procedures to the type of information you collect 8. Record user consents to demonstrate compliance 05/03/2015 23
  24. 24. Marketing to the mobile user Disclosures Privacy Anti-Spam (CASL) Contests Mobile Commerce 05/03/2015 24
  25. 25. Marketing to the mobile user Anti-Spam (CASL) – Texts, Emails and other “CEMs” CASL targets “Commercial Electronic Messages” A CEM: • includes a text, email, or IM • applies to most messages with any commercial / promotional element, including message content, hyperlinks, or contact info A CEM can be sent only if: • You have CASL-compliant express (“opt-in”) consent; • You have CASL-defined implied consent; • The CEM is expressly exempted; or • Consent is not required under CASL. 05/03/2015 25
  26. 26. Image Source: Compliance and Enforcement Information Bulletin CRTC 2012-548, Guidelines on the interpretation of the Electronic Commerce Protection Regulations (CRTC) Marketing to the mobile user Anti-Spam (CASL) – Texts and other “CEMs” CEMs must include: • mailing address plus one other contact – phone, email or URL • valid unsubscribe mechanism How to fit your message + CASL information into 136 characters? • Short url to .ca website containing Company contact info • Text “STOP” to opt out or Text “STOP” to end for unsubscribe 05/03/2015 See also: Comparing CASL to CAN-SPAM 26
  27. 27. Marketing to the mobile user Anti-Spam (CASL) – Installing an app Section 8 of CASL prohibits installing an app on a user’s device without express consent CASL does not apply where user installs the app on their own device However, CASL-compliant express consent is still required: • for updates or upgrades to that self-installed app; and • where that self-installed app contains concealed software. See: Canada’s Anti-Spam Law: Apps, Software, and other Computer Programs See: Canada’s Anti-Spam Legislation Requirements for Installing Computer Programs (CRTC) 05/03/2015 27
  28. 28. Marketing to the mobile user Disclosures Privacy Anti-Spam (CASL) Contests Mobile Commerce 05/03/2015 28
  29. 29. Marketing to the mobile user Contests Promoting your contest on mobile • “Limited real estate” is not an excuse for false or misleading messages. Be clear. Be truthful. Link to details. • Rules must be easy to find – e.g. clearly labelled link to home page with short rules, link from home page to full rules Text message entry • See “Contests” section of Canadian Common Short Code Application Guidelines at • May not imply that someone has won, if they have not (e.g. “selected to win”, “enter phone number to claim prize”) • Remember CASL requirements – see slide 25 05/03/2015 29
  30. 30. Marketing to the mobile user Contests Social Media Platforms • Review the current rules and policies for the platform (Facebook, Twitter, Instagram): • Releases • Acknowledgements • Personal information collection • Use of logos and icons in your promotions • Remember that other laws may apply: • Anti-Spam (CASL) and other restrictions on “invite a friend” entries • Use of #hashtags must not be misleading 05/03/2015 30
  31. 31. Marketing to the mobile user Disclosures Privacy Anti-Spam (CASL) Contests Mobile Commerce 05/03/2015 31
  32. 32. Marketing to the mobile user Mobile Commerce Includes in-app purchase, mobile content (ringtones, game extras, wallpapers), and much more • Consumer protection laws vary province by province • “Limited real estate” is not an excuse for misleading marketing. Be clear. Be truthful. Link to details. • Small screen poses a challenge for all of the mandatory disclosures required by law: product / service, price, terms, conditions, contact information • Make your contact information easily accessible – address complaints directly before they become disputes • Provincial law imposes rules for turning free trials into paid subscriptions 05/03/2015 32
  33. 33. Marketing to the mobile user Mobile Commerce • Privacy • Know the law and best practices for collecting consumer personal, financial information (see slides 21 and 22) • Are your partners or suppliers collecting, using or disclosing personal information? If so, cover off privacy and anti-spam law compliance, liability, and indemnity in your agreements • Children and Minors • Children are a vulnerable group, easily influenced • Quebec prohibits marketing to children • Contracts with minors may not be enforceable 05/03/2015 33
  34. 34. Some of our advertising and marketing work Agency Agreements Prepare and advise on agreements between advertisers and their agencies for short and long-term campaigns, including mobile programs Ad Copy Review Provide detailed review and clearance on advertising copy for all media and platforms. We address issues such as misleading advertising, proper disclosures, and permitted representations about regulated products. We also advise on ASC and TVB clearance. Promotional Contests Preparing long-form rules and minimum disclosures. Advice on sponsorships, events, packaging and point of sale materials, waivers and releases. Advice on multi- country contests, and on how to include Quebec residents as contest participants. Privacy Specialized advice on privacy policies and procedures for online, gaming, mobile, and other platforms. Anti-Spam (CASL) Prepare CASL compliance programs for website, mobile, and email marketing. Advise on compliance for partner / sponsor marketing, “refer a friend” programs, subscriber programs, and ongoing promotional outreach. Regulated Products and Services Specialized advice to manufacturers, distributors and retailers of alcoholic beverages, cosmetics and drugs. Ad clearance support. Representation on investigations and reviews by government regulatory agencies. Intellectual Property Expert advice on brand protection and licensing. This includes trade-mark registrations, copyright licensing and assignment, and advice on user generated content, sponsorship agreements, and infringement claims. Service Agreements Review and advise on developer agreements for mobile campaigns and applications 05/03/2015 34
  35. 35. Thank you 05/03/2015 Margot Patterson Counsel Intellectual Property, Communications Law, Competition Law, Entertainment | Sports | Media D +1 613 783 9693 E Margot is Counsel with Dentons' Ottawa, Canada office. Margot provides advertising and marketing advice to a broad range of clients in relation to broadcast, print, and digital media. Industry areas of focus include beverage alcohol, food, travel, fashion, cosmetics, home improvement products, and consumer electronics. Margot also assists Canadian and international businesses to meet the requirements of Canada's Anti-Spam (CASL) and Privacy laws. She is designated by the Law Society of Upper Canada as a Certified Specialist in copyright, and is recommended by Best Lawyers in Canada 2015 as one of Canada's leading lawyers in the area of Communications Law. Before joining Dentons, Margot was General Counsel and Vice-President, Legal Affairs for the Canadian Association of Broadcasters. 35
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