Legal issues for mobile marketing

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These are the slides from a webinar given as part of DCU's Get Mobile 2010 series. They outline the key legal issues that arise for businesses in Ireland (and, to a lesser extent, elsewhere in the EU) looking to extend their mobile presence, market to mobile customers and generally take advantage of all that this new medium has to offer.

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Legal issues for mobile marketing

  1. 1. Techspectations – Get Mobile 2010 Legal considerations for Mobile Marketing Monday 15 November 2010 Peppe Santoro Corporate Partner Head of Intellectual Property Eversheds O’Donnell Sweeney www.eversheds.ie www.linkedin.com/in/psantoro
  2. 2. Introduction • Mobile is an increasingly vibrant and growing sector – expected that within a few years there will be more users of the internet on mobile than on the PC • Ads shown on mobile platforms are being seen to trigger higher engagement levels for longer periods of time than general online • The immediate transactional capability and link to billing relationships offer new opportunities to achieve direct sales and allows smaller companies to close the ‘assurance’ gap with their larger competitors • Apple’s App Store, Google’s Android Marketplace, Nokia’s Ovi Store and other app marketplaces are creating new monetisation opportunities • Full integration of mobile and payments is getting ever closer • On the other hand, levels of regulation are increasing and pitfalls abound for the unwary
  3. 3. Market Participants (Irish Perspective)
  4. 4. Data Protection (1/2) • This is a key area of regulation and risk for mobile marketing/business • Mobile telephone number may constitute personal data (and definitely does when aggregated with other personally identifying information). Electronic communications (email, SMS, bluetooth) are separately and specifically regulated • Need to obtain contact information fairly in the first instance and exercise due diligence about sources of marketing lists (ie make sure intended recipients have given ‘opt-in’ consent) • Need to check against centralised ‘opt-out’ registers at all times • Unsolicited commercial communications sent electronically can attach fines of €5,000 per message on summary conviction (more on indictment) if done improperly
  5. 5. Data Protection (2/2) • There have been a number of prosecutions (albeit the penalties per message have been much lower than the maximum allowed) • Bluetooth marketing is attractive but presents similar issues and more besides (eg retention of customer data) that mean that business plans should be carefully analysed in advance for legal and regulatory issues • The Irish Data Protection Commissioner tends to take a pragmatic view of first time offenders but repeat offenders should expect to be prosecuted • The public is increasingly aware of the law in this area and best practice is emerging to show that successful mobile marketers are not overly pushy but develop a consistent relationship with the customer 1. Appropriate terms and conditions are necessary 2. Make sure they are signed up to appropriately (‘opt-in’) 3. Be clear in describing business practices
  6. 6. Other regulatory • Applicable codes of practice/guidelines – Comreg (formerly Regtel) – Irish Direct Marketing Association • Consumer Protection Act 2007 (fair marketing and unfair commercial practices (in particular fair pricing information)) • Electronic Commerce Act 2000 (contracts formed online will be as valid and binding as those done offline) • Gaming & Lotteries Acts 1956 - 1986 (for competitions, sweepstakes and other similar promotions) • Other industry specific regulation (eg recruitment, estate agency, legal services, accounting)
  7. 7. Intellectual Property • Most relevant rights include copyright and trade marks (incl. service marks). Other rights include performers’ rights, database rights, patents and moral rights • Consistent branding is important, more so in mobile. A consistent and easily communicated brand is a priority when available screen space is at a premium • Copyright clearance – copyright vests in ‘authors’ (eg artists, photographers, programmers) so any dealings in copyright works need to have appropriate assignments, licences or waivers in place • Contract developers – need assignment of IPRs to client: those assignments must be in writing • There have been several legal cases in relation to mobile phone ringtones and wallpapers, screensavers and other graphics
  8. 8. Premium rate (1/2) • New legislation in force since 12 July 2010: – Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010 – Communications Regulation (Licensing of Premium Rate Services) Regulations 2010 • Mandatory licensing regime for certain premium rate services providers (and a ‘grandfathering’ regime for those previously authorised). The critical date is 12 January 2011 • Both telephone calls and SMS/text messages are possible at premium rates but correct price notification is important at all times • Need for full and fair disclosure and to implement ‘stop’ mechanism to allow unsubscription from subscription services • There is a binding code of practice which applies (see next slide)
  9. 9. Premium rate (2/2) • Comreg code of practice for premium rate services providers covers general and specific areas. Specifics include: – Children’s services – Competition services – Advice & information services – Services of a sexual nature – Virtual chat services – Contact & dating services – Promotion of virtual chat and contact & dating services • Complaints and sanctions – Involvement of network operators – Three month period for review – Potential sanctions include service removal, shut down, refund, prevention, publication and prior approval
  10. 10. Marketing to Minors • Specifically regulated under Comreg Code of Practice for premium rate services providers • Present particular difficulties in relation to data protection as parental consent is required for processing of data • Also present issues in relation to the valid formation of contracts in mobile (the issue is that of the legal incapacity of minors) • Some significant potential business issues (eg Facebook ‘panic button’ campaign in the UK) • Benefits are commensurate with the risks involved as 12 – 18 is an important demographic among mobile phone users
  11. 11. Free Online Resources • www.dataprivacy.ie – Website of the Irish Data Protection Commissioner, useful guidance for businesses and consumers alike • www.basis.ie – Business Access to State information and services, the Irish Government portal for business information • www.comreg.ie – Website of the Commission for Telecommunications Regulation, useful information on premium rate licensing, copy of • www.eversheds.ie – Website of the firm with useful information published regularly in all areas • www.mondaq.com – Leading global aggregator of law firm news and information • www.linexlegal.ie – UK and Irish aggregator of legal information
  12. 12. Any questions?
  13. 13. Disclaimer This information in this presentation is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Eversheds O’Donnell Sweeney for any action taken in reliance on the information contained herein. Any and all information is subject to change. Eversheds O’Donnell Sweeney is not responsible for the contents of any other website or third party material which can be accessed through or is referred to in this presentation. All rights (including the rights of third parties in any logos and trade marks used herein) are reserved. Eversheds O'Donnell Sweeney is an Irish partnership and a member firm of the Eversheds International network of firms affiliated with Eversheds International Limited, an English company limited by guarantee. Member firms of Eversheds International are independent firms and members of Eversheds International Limited, but have no authority to obligate or bind Eversheds International Limited or one another vis-à-vis third parties. Neither Eversheds International Limited nor any of its member firms have any liability for each other’s acts or omissions.
  14. 14. • Get Mobile 2010, Wednesday 17th November • Visit www.techspectations.org for webinar uploads, news and events • Follow us on Twitter twitter.com/techspectations • Email us at techspectations@gmail.com

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