2013 05-29 Advertising and Marketing Law Presentation


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I presented at this terrific conference about social media and the law. I touched on a couple themes including copyright, online reputation and privacy. I took a new approach (for me, at least) and used my diabetes as an analogy for how non-lawyers tend to approach Legal.

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2013 05-29 Advertising and Marketing Law Presentation

  1. 1. Advertising &Marketing Law#amlaw13
  2. 2. I’d like to share a personal story** @pauljacobson
  3. 3. I was careless andI knew better
  4. 4. On the 5th of February 2013, my life changed
  5. 5. Suddenly my indulgences became hazards
  6. 6. What does this have to do with socialmedia and the law?
  7. 7. Without thoughtto consequences ...even though youknow better
  8. 8. You never think you will overdo itor things will go wrong
  9. 9. Copyright
  10. 10. Where is your teamgetting its content?
  11. 11. Did they obtain permission?
  12. 12. How are you licensingyour content?
  13. 13. This is Trey Ratcliffhttp://www.flickr.com/photos/scobleizer/5916015734/
  14. 14. http://www.flickr.com/photos/stuckincustoms/8837173497/
  15. 15. Privacy on the social Web
  16. 16. You know POPIis coming
  17. 17. “consent” means any voluntary, specific and informedexpression of will in terms of which permission is givenfor the processing of personal information"
  18. 18. “processing” means any operation or activity or any set of operations, whether or not byautomatic means, concerning personal information, including—(a) the collection, receipt, recording, organisation, collation, storage, updating ormodification, retrieval, alteration, consultation or use;(b) dissemination by means of transmission, distribution or making available in any otherform; or(c) merging, linking, as well as restriction, degradation, erasure or destruction ofinformation;
  19. 19. ‘‘personal information’’ means information relating to an identifiable, living, naturalperson, and where it is applicable, an identifiable, existing juristic person, including, but notlimited to—(a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnicor social origin, colour, sexual orientation, age, physical or mental health, well-being,disability, religion, conscience, belief, culture, language and birth of the person;(b) information relating to the education or the medical, financial, criminal or employmenthistory of the person;(c) any identifying number, symbol, e-mail address, physical address, telephone number,location information, online identifier or other particular assignment to the person;(d) the biometric information of the person;(e) the personal opinions, views or preferences of the person;(f) correspondence sent by the person that is implicitly or explicitly of a private orconfidential nature or further correspondence that would reveal the contents of theoriginal correspondence;(g) the views or opinions of another individual about the person; and(h) the name of the person if it appears with other personal information relating to theperson or if the disclosure of the name itself would reveal information about the person;
  20. 20. Expression and Reputation
  21. 21. Perceptions are important
  22. 22. The social Webamplifies
  23. 23. “Chris Cairns removed from the IPL auction list due tohis past record in match fixing. This was done by theGoverning Council today”Lalit Modi on Twitter, 5 January 2010(tweet has been removed)
  24. 24. The original Tweet was received by only a limited number of followers withinEngland and Wales. One expert calculated that they numbered 95, the other 35.The parties have sensibly agreed that I should take the figure of 65. The secondpublication, to Cricinfo was on their website only for period of hours. The expertsfigures for numbers of readers of this publication are respectively 450 and 1500. Ishall proceed on the basis that about 1000 people read the second publication,which I have found carried the less grave but nonetheless serious meaning thatthere were strong grounds for suspecting that the claimant had been involved inmatch fixing. In respect of the second publication I also bear in mind that Cricinfohave settled with the Claimant, paying him £7,000 damages and a further sum forcosts.
  25. 25. Modi was ordered to pay £90 000in damages
  26. 26. Modi was also ordered to pay £400 000in legal costs
  27. 27. The test for determining whether words published aredefamatory is to ask whether a ‘reasonable person of ordinaryintelligence might reasonably understand the words . . . toconvey a meaning defamatory of the plaintiff. . . . The test is anobjective one. In the absence of an innuendo, the reasonableperson of ordinary intelligence is taken to understand thewords alleged to be defamatory in their natural and ordinarymeaning. In determining this natural and ordinary meaning theCourt must take account not only of what the words expresslysay, but also of what they imply’Judge Willis quoting Argus Printing and Publishing Co Ltd vEsselen’s Estate in the Joburg High Court case of H v W
  28. 28. Something else to bear in mindIt gets worse ...
  29. 29. 2003Collection of 12 000 Californiancoastal propertiesGovernment sanctioned andcommissioned projectShe sued for $50 millionWent public and over 420 000people viewed the photo online
  30. 30. “If you try to stick up for what you have alegal right to do, and youre somewhatworse off because of it, thats aninteresting concept.”Michael Avery, Toshiba’s attorney,commenting on the 2007 Digg revolt
  31. 31. There is more and it gets worse
  32. 32. The result was astonishing
  33. 33. Do you have a plan inplace to anticipatethese risks?
  34. 34. Back to my diabetes
  35. 35. Do you want yourbusiness on chronicmedicationadministered bylawyers?
  36. 36. Or willyou startrunning?
  37. 37. ... and monitor your legal exposure regularly?
  38. 38. Thank you!** Questions to follow ...
  39. 39. Questions
  40. 40. Can personal information be supplied to 3rd parties?
  41. 41. Can you collect children’s personal informationusing incentives to persuade them to disclosetheir personal information?
  42. 42. What is POPI’s impact on promotionalcompetitions and what are promoters’obligations?
  43. 43. What are the rules governing prize giveawayson Facebook? What is acceptable?
  44. 44. Viral marketing defamation risks?
  45. 45. Possible retrospective implications for pre-POPIpersonal information processing
  46. 46. Must sources be included in video representations?
  47. 47. Any more questions?
  48. 48. Paul Jacobsonpaul@webtechlaw.com@webtechlaw or +Web•Tech•Lawwebtechlaw.com