1. Hot Topics in Digital
Advertising –
Guidance for In-house
Counsel (Part I)
ACCA Advertising Practice Group
June 26, 2014
Greg Boyd, Brian Murphy, Mark Seidenfeld
Terri Seligman & Claudine Wilson

2. Topics – A Lightening Round!
• Platform Compliance
• FTC: Dot Com Disclosures and
Endorsements
• IP Implication of Posting/Sharing
Third Party Contact in Social Media
• Privacy

3. Topic 1
Social Media Platform Term
Compliance

4. In a Nutshell: Social Media
Platform Terms
• Users must meet age requirements
– 13+ on Facebook, Twitter, Instagram, and Pinterest
– 17+ on Vine and 18+ on Snapchat
• Users are responsible for content they post
• Don’t suggest an affiliation with the platform
• Comply with the law
• Get permission to use material off platform
• No inappropriate content (e.g., infringing material,
violence, hate speech, spam)

5. How Can I Interact With Users?
• Terms prohibit use of functionality to send junk
mail, duplicative comments, or unsolicited offers
– Interactions should be meaningful and genuine
• Consider whether communications permitted by
the platforms may infringe a user’s rights
– Platform terms may not give you the rights you need

6. How Can I Interact With Users?
• Remember that content that’s been
shared remains public after you’ve
deleted it
• Tension between what platforms
technically allow and potential right
of publicity issues
– Do @mentions violate a user’s rights?

7. Interaction - Facebook
• Official page
– Respond to comments, answer questions, and
solicit feedback
• Direct messaging
– Brands cannot direct message users unless
they contact the brand first

8. Interaction - Instagram
• Main interaction through comments
– All comments are public
• No “sharing” functionality of posted content
• Sharing occurs through screenshots, cropping,
and reposting
– Violates Instagram terms

9. Interaction - Instagram

10. UGC – Across Platforms
• Users retain ownership of UGC
• Platforms obtain a broad license to use UGC
• Platforms say they give various licenses to use
content in different ways, subject to varying terms
• Users represent that UGC is non-infringing

11. UGC – Reuse UGC Off-Platform?
• Does the user who posted
the UGC likely have all of
the rights to give?
• How do you get the rights?
– From the platform?
– From the user?
• What usage (without
permission) will be
tolerated?

12. In A Nutshell: Use of Platform
Brand Assets
• Don’t modify or use them in a confusing way
• Don’t falsely suggest sponsorship or affiliation
• Some sites require a non-association disclaimer
• Don’t use trademarks in the name of the product
or the promotion
• Use the platform’s marks less prominently than
your own marks

13. Topic 2
FTC: Dot Com Disclosures and
Endorsements

14. FTC’s Dot Com Guidance
• .com Disclosures: How to Make
Effective Disclosures in Digital
Advertising
• Released in March 2013
• Updates guidance
released in 2000

15. Guidance clarifies that…
• Consumer protection laws governing advertising
apply equally to marketers in both traditional
and digital media.
• Any disclosures necessary to make a claim
truthful and adequately substantiated for a
reasonable consumer must be clear and
conspicuous, even if the space for them is limited
by the medium.
• In addition, such disclosures must be made
before consumers make a decision to buy.

16. Significant Watch-outs
• If a particular platform does not
provide sufficient opportunity to
make clear and conspicuous
disclosures, that platform should not
be used. Inadequate space is not an
excuse: compliance comes first.

17. Make disclosures unavoidable
• Because consumers don't necessarily
enter a website at the homepage or
any particular page, it may be
necessary to repeat disclosures
related to a claim or offer several
times. Moreover, the disclosures
must be "unavoidable" and should
appear before a consumer gets to the
order screen.

18. Hyperlinks
• Hyperlinks, where appropriate for
disclosures, must be explicitly
labeled; use of "disclosures" or
"terms" or, even, "important
information" may not be adequate.

19. Optimizing for mobile
• Because of the small screens on smart phones
(and some tablets), and the need to zoom in on
copy to make it legible on the smaller screen,
consumers may miss necessary disclosures.
Therefore, optimizing websites for mobile devices
should be done as a matter of course.
• Beware of horizontal scrolling

20. Technological limitations
• Advertisers must be aware of technological
limitations when considering whether a technique
is appropriate for providing disclosures. For
example, pop-ups can be prevented from
appearing by pop-up blocking software and
mouse-overs may not work in the mobile
environment.

21. Space constrained ads
• Short-form disclosures in space-
constrained ads, such as on Twitter
or Facebook, may not be adequate.
Advertisers may need to gather
empirical evidence to show that
abbreviations and icons work in
communicating required disclosures
to consumers.

22. FTC Letter to Search Engines:
Key Recommendations
• Search engines must ensure that any labels and visual cues used to distinguish advertising from
natural search results are sufficiently noticeable and understandable to consumers.
• In distinguishing top ads or other advertising results integrated into the natural search results, search
engines should use: (1) more prominent shading that has a clear outline; (2) a prominent border that
distinctly sets off advertising from the natural search results; or (3) both prominent shading and a
border.
• In addition to the visual cues a search engine may use to distinguish advertising, paid search results
should have a text label that: (1) uses language that explicitly and unambiguously conveys whether
a search result is advertising; (2) is large and visible enough for consumers to notice it; and (3)
is located near the search result (or group of search results) that it qualifies and where consumers will
see it.
• Because consumers may not notice labels in the top right-hand corner of the shaded area or "ad
blocks," search engines should place any text label used to distinguish advertising results immediately in
front of an advertising result, or in the upper left-hand corner of an ad block, including any grouping of
paid specialized results, in adequately sized and colored font.
• Any cues used to indicate that search results were sponsored by an advertiser must be "sufficiently
visible on both mobile devices and desktop computers."

23. The Endorsement Guides
• Guides Concerning the use of
Endorsements and Testimonials in
Advertising (16 C.F.R. Part 255)
• Promulgated in 1975
• Last revised in 1980
• In 2007, FTC began its review
• Revisions announced in October
2009

24. Key Update: Disclosure of
Material Connections
• Connections between the endorser and the
advertiser, which might materially affect the
weight or credibility of the endorsement, should
be clearly and conspicuously disclosed
• Connections that are “not reasonably expected by
the audience”

25. FTC’s FAQs
• No disclosure of material connection is generally required in
traditional media or on websites with similar content
• On Facebook, you should disclose the connection with each
post
• Celebrities should still disclose the connection, even if they are
a well-known spokesperson for the product
• A single disclosure on a home page that says that products may
be provided for free, or a button that says “disclosure,” is
generally not sufficient disclosure
• On Twitter, use disclosures such as “#paid ad,” “#paid,” and
“#ad”

26. #Hotwater with FTC: Ann Taylor
• FTC was concerned that the bloggers failed to
disclose that they received gifts (2010)
• FTC decides not to bring enforcement action
– It was the first and only preview event
– Only a few bloggers posted content, and some disclosed the
gifts
– A sign was posted at the event telling bloggers to disclose
the gifts
– Afterwards, Ann Taylor adopted a written policy on blogger
disclosures

27. #Hotwater with FTC: Cole Haan
• Cole Haan’s #WanderingSole Pinterest contest
required entrants to pin 5 photos of shoes
• FTC: These are endorsements and consumers
won’t know that entrants were incentivized to
pin– #WanderingSole won’t work!
• FTC doesn’t pursue b/c this is new issue, contest
short with few entries, and Cole Haan enacts new
social media policy

28. #Hotwater with FTC: ADT
• Security company’s "experts" were featured on numerous high-
profile TV and radio shows, and across the internet in articles
and blog posts. Although ADT allegedly booked the experts'
appearances through its public relations firms and booking
agents - and even provided the media with B-roll footage and
questions for the interviews - few segments mentioned the
experts' connection with ADT.
• FTC says relationship must be disclosed and settles action with
ADT requiring clear and prominent disclosures
• FTC also investigates actions of the intermediaries in this
arrangement, the public relations firm, the advertising network
that published the blog posts, the booking agency and even one
of the experts herself. Closing letters issued.

29. Topic 3
IP Implications of
Posting/Sharing Third Party
Content in Social Media
Is the sky really falling?

30. Rights Clearance & Social Media
1. Do I need permission?
2. Do I have permission –
based on the “permission
infrastructure” of the
social media platform?
3. Is the permission I have
robust enough to cover
what I’m doing?
Maybe
Maybe
Maybe

31. Law Coverage
Right of Publicity The name, likeness, photograph,
voice, identity, and “persona” of any
person living (and in many places
dead)
Copyright Any creative material fixed in a
tangible medium of expression
Trademark Words, logos, symbols, taglines
(and possibly other things) that are
used to identify the source of goods
or services

32. Do I need permission?
Copyright:
• Every use
presumptively needs
permission
• Linking vs. Copying
– Perfect 10 v. Amazon
(9th Cir. 2007) (the
“server test”)
– Flava Works v. Gunter
(7th Cir. 2012)
• Fair Use
Trademark:
• Likelihood of Confusion
• Classic Fair Use
• Nominative Fair Use
• Free Speech / Parody

33. Do I need permission?
Right of Publicity

34. At last!

35. ROP: Is it a Commercial Use?
Blurred Lines
• The lines between advertising and editorial
content have always been blurry.
• This matters because the rules that apply to
advertising are different from those that apply to
editorial content.
– Rights Clearance (esp. Right of Publicity)
– (Also False Advertising!)
• The law is a tortoise; technology, a hare.

36. Lessons from “Old Media”?
Downing v. Abercrombie & Fitch (9th Cir. 2001)

37. Practical Questions
• Who is the speaker? The brand!
• Who is the audience? The customer?
• What is the purpose? To build the brand’s image
and sell products?
• Who controls it? The CMO?
• Who pays for it? Does it come out of the
marketing budget?
• Is it objective? Yeah. Right.

38. But I don’t even mention a product!
Jordan v. Jewel Food Stores (7th Cir. 2014)
• Image advertising = advertising
• Does the speaker have an economic
motive?
• “Jewel’s ad has an unmistakable
commercial function: enhancing the
Jewel-Osco brand in the minds of
consumers. This commercial message
is implicit but easily inferred, and is
the dominant one.”

39. Right of Publicity vs.
First Amendment
• At least 8 different balancing tests,
including:
– Transformative
– Predominant Purpose
– Rogers v. Grimaldi
– Real Relationship

40. Do I have permission?
• Directly from the rights holder?
• From users via the Social Media
Platform’s TOS (and other terms,
policies, guidelines)?

41. Do I have permission?
USER
BRAND
(DEVELOPER)
PLATFORM
• Users of social media sites grant broad rights to
the social media platform, and the platform
grants broad rights to developers
• Despite terms/policies, some users may not
understand that their content can be used in a
commercial context
• TOS/Developer Guidelines NOT always so clear:
– Twitter API TOS allow use of tweets “in advertisements,
not as advertisements”

42. Is the permission robust enough?
USER
BRAND
(DEVELOPER)
PLATFORM
“Creative Commons licenses do not waive or otherwise affect rights of privacy or
publicity to the extent they apply. If you have created a work or wish to use a
work that might in some way implicate these rights, you may need to obtain
permission from the individuals whose rights may be affected.”
(Creative Commons FAQs)

45. Topic 4
Privacy Update

46. Privacy Update
• COPPA was updated in 2013
– Photos and geolocation are now PII
– Mixed audience sites can no longer just screen
out children with terms.

47. CalOPPA Updated
• Websites must state how they
respond to “do not track signals.”
• Disclose if the website participates
in tracking users across websites
using third parties.

48. Key International Points
• Canada has CASL going into effect in
July – Opt-In only marketing
emails.
• EU/US Safe Harbor seeing
enforcement and rising importance.