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

Mobile marketing

Your guide to legal compliancefrom concept to activation

February 2015

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

Mobile Marketing

†http://iabcanada.com/digital-overtakes-tv-for-largest-share-of-ad-spend-in-canada/

05/03/2015 3

Mobile

marketing is

“surging”†

Your

marketing

has

changed...

but the law

has not

What does

this mean

for you?

http://iabcanada.com/digital-overtakes-tv-for-largest-share-of-ad-spend-in-canada/

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

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You and your Developer

05/03/2015

The Service Agreement

Mobile-specific issues

5




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




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




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

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You and the app store

05/03/2015

Key legal guidelines

9

You and the app storeKey legal guidelines

App store review guidelines:

https://developer.apple.com/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



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



Google Play Developer

http://play.google.com/about/developer-content-policy.html

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.

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http://play.google.com/about/developer-content-policy.html

You and your co-sponsor

05/03/2015

The Sponsorship Agreement

Mobile-Specific issues

13



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



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

Marketing to the mobile user

05/03/2015

Disclosures

Privacy

CASL

Contests

Mobile commerce

16


Disclosures Privacy Anti-Spam

(CASL)

Contests Mobile

Commerce

05/03/2015 17


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

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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 http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03134.html

Call to Action*

One Week Only

Act now!

*Disclaimer text.

Up to

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19

http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03134.html



(CASL)

Contests Mobile

Commerce

05/03/2015 20


Privacy

Office of the Privacy Commissioner of Canada is increasingly active

on mobile issues

• Global privacy sweep raises concerns about mobile apps

https://www.priv.gc.ca/media/nr-c/2014/nr-c_140910_e.asp

• 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

https://www.priv.gc.ca/information/pub/gd_app_201210_e.asp

• OPC Guidance - Communicating Privacy Practices to Your App's Users

https://www.priv.gc.ca/resource/fs-fi/02_05_d_61_tips_e.asp

• OPC Guidance – Policy Position on Online Behavioural Advertising

https://www.priv.gc.ca/information/guide/2012/bg_ba_1206_e.asp

05/03/2015 21

https://www.priv.gc.ca/media/nr-c/2014/nr-c_140910_e.asp

https://www.priv.gc.ca/information/pub/gd_app_201210_e.asp

https://www.priv.gc.ca/resource/fs-fi/02_05_d_61_tips_e.asp

https://www.priv.gc.ca/information/guide/2012/bg_ba_1206_e.asp


Privacy

05/03/2015

• Informed consent

• Layered notices

• Just-in-time notice

• Opt-out

Notice and Consent


• Disclose purpose: Function? Ads?

• Opt-out

Geolocation


• 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


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



(CASL)

Contests Mobile

Commerce

05/03/2015 24


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

Image Source: Compliance and Enforcement Information Bulletin

CRTC 2012-548, Guidelines on the interpretation of the Electronic

Commerce Protection Regulations (CRTC)


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

http://www.slideshare.net/DentonsGlobal/comparing-casl-to-canspam-22498536

26

http://www.slideshare.net/DentonsGlobal/comparing-casl-to-canspam-22498536


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

http://www.slideshare.net/DentonsGlobal/canadas-antispam-law-casl

See: Canada’s Anti-Spam Legislation Requirements for Installing Computer Programs

(CRTC) http://www.crtc.gc.ca/eng/info_sht/i2.htm

05/03/2015 27

http://www.slideshare.net/DentonsGlobal/canadas-antispam-law-casl

http://www.crtc.gc.ca/eng/info_sht/i2.htm



(CASL)

Contests Mobile

Commerce

05/03/2015 28


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 http://www.txt.ca/english/business/index.php

• 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

http://www.txt.ca/english/business/index.php


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



(CASL)

Contests Mobile

Commerce

05/03/2015 31


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


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

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

Thank you

05/03/2015

Margot Patterson

Counsel

Intellectual Property, Communications Law,

Competition Law, Entertainment | Sports | Media

D +1 613 783 9693

E [email protected]

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.

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

Technology

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