David Adler - Facebook Marketing: Legal & Regulatory Compliance

FACEBOOK MARKETINGLegal & Regulatory Compliance

© 2011 David M. Adler, Esq.Leavens, Strand, Glover & Adler

SPEAKER BIODavid M. Adler, Esq. is an attorney, author, educator, entrepreneur and partner of a boutique intellectual property law firm based in Chicago, Illinois. With over fourteen years of legal experience, Mr. Adler’s practice is focused on providing businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business.

Mr. Adler has an extensive private-practice and in-house background counseling and international cadre of clients on corporate and intellectual property law, including corporation, LLC and Limited Partnership creation and finance, contract interpretation, drafting, negotiation and enforcement as well as copyright and trademark registration and enforcement. Mr. Adler also specializes in advising artistic talent and creative professionals in the arts, entertainment, media and sports industries.

He received his law degree from the DePaul University College of Law in 1997 where he wrote for the DePaul Arts & Entertainment Law Journal. He received a Bachelor of the Arts in English and a Bachelor of the Arts in History from Indiana University in Bloomington, Indiana.

Outside the practice of law, Mr. Adler teaches Music Law at the DePaul College of Law in Chicago, is the immediate past chair of the Arts & Entertainment Law Committee of the Chicago Bar Association and frequently contributes as a “guest expert” columnist for numerous online publications in the areas of ecommerce, intellectual property and small business and periodically speak to industry and trade groups and associations on these topics.


Introduction

Facebook represents a paradigm shift in the way that marketing professionals identify, engage and convert customers.

Interactive platform Customers actively engaged in seeking out

brands Individually or through trusted networks Platform allows marketers to continue the

conversation even when the customer has nominally disengaged (through trusted networks).


Intro Cont’d

Face book gives marketers tremendous power Communicate Engage Support

Great Power = Great Risks. Marketing that is thoughtful, respectful

and legally compliant is extremely effective. Coca Cola


Intro Cont’d

However, marketing efforts that fail to understand and account for the requirements to maintain legal compliance can be a disaster. Vodaphone


Intro Cont’d


Dhaval Valia - switched to Vodafone India for 3G


Intro Cont’d


Dhaval Valia - switched to Vodafone India for 3G But: No 3G coverage; Got Vodafone India to

admit that it was misleading customers


Intro Cont’d


Dhaval Valia - switched to Vodafone India for 3G But: No 3G coverage; Got Vodafone India to

admit that it was misleading customers Shared the incident with its community on

Facebook


Intro Cont’d


Intro Cont’d


Dhaval Valia - switched to Vodafone India for 3G Got Vodafone India to admit that it was

misleading customers Shared the incident with its community on

Facebook Got sued for Defamation


Intro Cont’d


Dhaval Valia - switched to Vodafone India for 3G Got Vodafone India to admit that it was misleading

customers Shared the incident with its community on Facebook Got sued for Defamation Counter-sued for hacking, trapping and monitoring


Intro Cont’d


Dhaval Valia - switched to Vodafone India for 3G Got Vodafone India to admit that it was misleading

customers Shared the incident with its community on Facebook Got sued for Defamation Counter-sued for hacking, trapping and monitoring Vodaphone got so much negative publicity it had to

drop the suit© 2011 David M. Adler, Esq.

Leavens, Strand, Glover & Adler

The Three C’s of Facebook

In the beginning: poke, like and comment. But what happens when you can purchase? Facebook is the platform to identify, locate,

contact and transact business with consumers physical and virtual goods and services physical and virtual currency.

Facebook marketing risks: "The Three Cs” Content Connecting Commerce


Content

IP•Copyright•Trademark

Reputation UGC•Fan Pages© 2011 David M. Adler, Esq.

Leavens, Strand, Glover & Adler

Legal Risk: Copyright

Copyright protects “original works of creative authorship fixed in a tangible medium of expression”




Legal Risk




Legal Risk CONTENT whether (a) created by you, (b) by someone else at your request, or

(c) by an independent third party IS PROTECTED BY COPYRIGHT





(c) by an independent third party IS PROTECTED BY COPYRIGHT Using / Repurposing Comments





(c) by an independent third party IS PROTECTED BY COPYRIGHT Using / Repurposing Comments Embedding Videos/Audio






Compliance Tips






Compliance Tips Get Permission






Compliance Tips Get Permission For Comments / UGC, if you cant get permission:







Provide Notice + Opt Out



Copyright protects “original works of creative authorship fixed in a tangible medium of expression




Provide Notice + Opt Out Register the Copyright







Provide Notice + Opt Out Register the Copyright Get a Legal Review



Unauthorized Use of Content?



Unauthorized Use of Content? DMCA




Protects ISPs/Web Hosts




Protects ISPs/Web Hosts Provides Mechanism to enforce copyrights




Protects ISPs/Web Hosts Provides Mechanism to enforce copyrights Check Terms of Use or other legal docs for identity of the Copyright/DMCA

Agent





Agent My Content?





Agent My Content?

Send DMCA Take Down Notice





Agent My Content?

Send DMCA Take Down Notice An effective DMCA Notice must contain the following information:





Agent My Content?

Send DMCA Take Down Notice An effective DMCA Notice must contain the following information:

1. Identity of the correspondent, either: (i) the owner or (ii) authorized person2. Your contact information3. Identify the copyrighted work that you claim is being infringed4. Identify the material to be disabled 5. Provide the specific location6. User the “Magic Words” - you have “a good faith belief that use of the material in the

manner complained of is not authorized by the copyright owner, its agents, or the law.” 7. State that information is accurate, and sign your name, under penalty of perjury. 8. Send your DMCA Notice to the “designated agent.”



My ISP/Web Host received a Take Down Notice. Now What ?



My ISP/Web Host received a Take Down Notice. Now What ? Send a Counter-Notice



My ISP/Web Host received a Take Down Notice. Now What ? Send a Counter-Notice A Counter-Notice Must contain:



My ISP/Web Host received a Take Down Notice. Now What ? Send a Counter-Notice A Counter-Notice Must contain:

1. Identity of Material that has been disabled2. Identity of the Party that owns the account where the material can be found3. Consent to the jurisdiction specified by the applicable service provider and

consent to service of process4. Magic Words: “I, the undersigned, swear, under penalty of perjury, that I have a

good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”


Legal Risk: Trademark

What is a Trademark / Servicemark?



What is a Trademark / Servicemark? Any word, name, symbol or device that signifies the source of goods or services




How are Trademarks Used?




How are Trademarks Used? Brand Names




How are Trademarks Used? Brand Names Vanity URLs




How are Trademarks Used? Brand Names Vanity URLs Groups/Fan Pages




How are Trademarks Used? Brand Names Vanity URLs Groups/Fan Pages Comparative Advertising





Legal Risks





Legal Risks Infringement: Confusion, Mistake or Deception





Legal Risks Infringement: Confusion, Mistake or Deception Dilution / Tarnishment






Compliance Tips






Compliance Tips Knock-out Search






Compliance Tips Knock-out Search Trademark Monitoring


Legal Risk: Reputationand Fan Pages

IP Rights (again)



IP Rights (again) Reputation Management




Pay attention, respond, be honest, follow-up




Pay attention, respond, be honest, follow-up Publish an “Official Response”




Pay attention, respond, be honest, follow-up Publish an “Official Response” Use feedback to build strengths and strengthen weaknesses





Fan Pages





Fan Pages Brand Risks






Dilution / Tarnishment






Dilution / Tarnishment Abandonment







Branded v. Unbranded Pages







Branded v. Unbranded Pages Unbranded Pages: Administrators of healthcare industry Pages not allowed to disable

commenting on Wall posts that are shared with fans.







Branded v. Unbranded Pages Unbranded Pages: Administrators of healthcare industry Pages not allowed to disable

commenting on Wall posts that are shared with fans. Branded Pages: Pages solely dedicated to a prescription medication may have this

commenting functionality removed to ensure adherence to current FDA regulations AS LONG AS no solely community based


Legal Risk: Connecting

Promotions and Incentives are great for enhancing good will, generating brand awareness and improving sales.




Promotions have grown more sophisticated and methods more pervasive (social media anyone?)





Legal Risks:





Legal Risks: Sweepstakes, gift cards and awards are governed by a collection of inconsistent

laws.






laws. Federal CARD Act governs fees and expirations for stored-value cards, gist

crepitates, etc.







crepitates, etc. Compliance Tip








Sweepstakes: Get an experienced lawyer to help you review the prize, eligibility and state law compliance








Sweepstakes: Get an experienced lawyer to help you review the prize, eligibility and sate law compliance

Gift Cards/Certificates: Get an experienced lawyer to help you review state law compliance


Legal Risk: Commerce

Axiomatic that advances in technology proceed faster than the law.




In addition to various federal statutes, Federal Trade Commission has implemented a number of initiatives to “protect consumers.”





Important Statues





Important Statues Federal CAN SPAM Act: sets the rules for commercial email (not just SPAM),

establishes requirements for messages, gives recipients the right to have you stop emailing them







FTC “Dot Com” Disclosures: Guidelines involve disclosing information about relationships with advertisers or endorsers that would have a material impact about how a prospective consumer would view the message.





Important Statues Federal CAN SPAM Act: sets the rules for commercial email (not just

SPAM), establishes requirements for messages, gives recipients the right to have you stop emailing them


COPPA: governs collection of personally identifying information of children aged 13 years or younger; requires parental consent








COPPA: governs collection of personally identifying information of children aged 13 years or younger; requires parental consent

FTC Privacy Report: December 1, 2010 FTC proposed a new framework for protecting consumer privacy, along with more specific and aggressive guidelines for those in the business of sharing consumer information with third parties.


Summary

Due Diligence


Summary

Due Diligence Is your firm aware of the legal and regulatory issues that impact social

media?


Summary


media? Does your firm take a “best practices” approach to engaging

customers, employees and business partners?


Summary



customers, employees and business partners? Does your firm have a Social Media Policy that address the firm’s

philosophy and Behavioral, Channel, Contextual and Content Expectations?


Summary





Does your firm monitor social media channels for negative messaging or IP rights violations?


Summary





Does your firm monitor social media channels for negative messaging or IP rights violations?

Does your firm have an action plan for addressing these risks?


Summary

Action Items


Summary

Action Items Review Contracts to ensure issues addressed


Summary

Action Items Review Contracts to ensure issues addressed Draft a Code of Ethics/Code of Conduct


Summary

Action Items Review Contracts to ensure issues addressed Draft a Code of Ethics/Code of Conduct Draft a Social Media Policy!


Summary

Action Items Review Contracts to ensure issues addressed Draft a Code of Ethics/Code of Conduct Draft a Social Media Policy! Continue to Monitor Social Channels and Brands


David Adler - Facebook Marketing: Legal & Regulatory Compliance

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