Interactive Counsel

Arent Fox's interactive media law blog - latest news and trends in advertising, data security & privacy, and IP.

Interactive Counsel
Advertising
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Arent Fox Partner Anthony Lupo Speaks in Panel Discussion at 2014 Legal and Regulatory Conference

On April 9, 2014, Anthony V. Lupo will participate in a panel discussion about advertising and updates in the FTC at the 2014 Legal and Regulatory Conference. The panel, titled “Don Draper in the Digital Age: How Technology is Changing the Law of Advertising,” will cover topics such as native advertising, social media, the internet of things and consumer consent, and behavioral advertising. Additional speakers will include Farah Ahmed of the Personal Care Products Council, Andrew Udin of MRY Advertising, and Anthony Justman of Sony Computer Entertainment.

To learn more about the Conference, click here.

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Advertising, Product Placement & Distribution
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Do Clothing Manufacturers Need to Rethink Marketing Tactics for Outlets?
Four members of Congress recently asked the Federal Trade Commission to launch a federal investigation into the marketing practices conducted by outlet stores. They are arguing that because of the way outlets market their products, consumers may be unaware that lower quality items never intended to be sold at the regular retail store are often made available in the retailer’s outlet collection.
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Advertising
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Sarah Bruno to Speak During ANA’s Advertising Law and Public Policy Conference

On April 24, 2014, Sarah L. Bruno will present “We’re All Buzzing! Substantiation in the Tech Industry” during the Association of National Advertisers’ Advertising Law & Public Policy Conference. As with past conferences, attendees will hear from important regulators on key issues that are shaping the legal and political climate for advertising and marketing.

Sarah’s presentation will focus on some of the more daring advertising claims made in the technology industry and provide insight on what is needed to substantiate them. It will also discuss the challenges presented in advertising advanced technology law, including what disclosures should be considered when a product employs technology that is not yet in existence. The panel will also provide an overview of the legal issues surrounding “green” claims in the technology industry.

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Advertising, E-Commerce, Mobile Marketing, Social Media
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California State Court Decision Could Spell Trouble for Some Online Retailers

A recent state court decision in California could prove a major headache for online retailers that engage in comparative price advertising. Although the decision — People of the State of California v. Overstock.com — is not binding precedent and its future on appeal is far from clear, the decision suggests that retailers may be forced to adopt more rigorous internal standards when engaging in comparative price advertising.

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Advertising
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News Roundup: The Negative Option and Fantage

Opt-In or Else: Maryland Introduces Negative Option Bill

Maryland is considering a ban on negative option plans after a bill restricting its use to Maryland consumers was recently introduced. If approved to become law, the bill will require merchants to obtain express consent before billing consumers using a negative option feature. Therefore, marketers would be required to obtain express affirmative consent prior to beginning to bill a consumer for consecutive periods until the consumer cancels. A similar bill was introduced last year, but did not progress. Arent Fox will continue to monitor the progress of this legislation.

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Advertising, E-Commerce, Promotions, Sweepstakes & Contests, Publicity Rights
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Oh BehAve! The BBB Is Watching

The Council of Better Business Bureaus (BBB) recently announced that it will be increasing its enforcement efforts for website operators that participate in online behavioral advertising (OBA), which is targeted advertising to consumers based upon their interests. The BBB is responsible for enforcing the self-regulatory code created by the Digital Advertising Alliance (DAA), which requires website operators to provide additional information regarding their OBA activity. Although the DAA code has been in force for some time now, the BBB has noted that many website operators are failing to comply. Therefore, beginning this year, the BBB intends to increase its efforts to require compliance.

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Advertising, COPPA & GLB, Privacy & Security
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FTC Approves New COPPA Safe Harbor Program

The Federal Trade Commission (FTC) has recently approved the kidSAFE Seal Program’s kidSAFE+ seal as a safe harbor program through which companies can demonstrate compliance with the Children’s Online Privacy Protection Act (COPPA) Rule.

A company that is approved under the FTC’s safe harbor program is deemed to be in compliance with the COPPA Rule. This means that the FTC has sanctioned the practices of the website with respect to its collection of data from children under the age of 13. As it was approved, the kidSAFE Seal Program’s kidSAFE+ seal will now serve as a safe harbor option. It is available to websites and applications, including mobile apps, tablet devices, and other interactive technologies.

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Advertising, Product Placement & Distribution, Social Media, User-Generated Content, E-Commerce, Intellectual Property
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CrossFit Legal Muscle No Match for the “CrossFit Mama”

According to a recent ruling in the US District Court for the Northern District of California, CrossFit may have violated the Digital Millennium Copyright Act (DMCA) by submitting a DMCA takedown request to Facebook based on trademark rights instead of copyrights. The case is a reminder that there are consequences under the DMCA for companies that fail to exercise caution when policing their trademark rights and copyrights on the internet.

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Health Privacy & Security, Social Media, E-Commerce, Advertising
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News Roundup: Google, Facebook, LinkedIn Grab Headlines

FTC Calls Unreasonable Security an Unfair Trade Practice

A lawsuit filed by the Federal Trade Commission (FTC) against Accretive Health, Inc. reminds employers to ensure they have a policy in place to manage employee use, access and control over personal data. The FTC investigation began when an Accretive employee’s laptop, storing the sensitive health information of 23,000 patients, was stolen.

While the loss of a laptop alone may not have been viewed as a large problem, the fact that the employee had that much information on the laptop when the information was not necessary for the employee to do his job was viewed as a larger issue. Additionally, the FTC determined that the company created unnecessary risk to consumer information by permitting the transport of sensitive information in unsecure manners, failing to limit access to information, and failing to have proper data removal or destruction processes.

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COPPA & GLB, E-Commerce, Social Media, User-Generated Content
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New COPPA Consent Method Gives Websites Greater Flexibility

The Federal Trade Commission (FTC) recently approved a new method for obtaining verifiable parental consent that could make it easier for companies to comply with the Children’s Online Privacy Protection Act (COPPA) Rule. The COPPA Rule applies to websites that are “targeted” at children under the age of 13 and websites that have “actual knowledge” that they are collecting personal information directly from users of another website or online service directed to children (covered websites). Primarily, the Rule requires a covered website to provide notice to parents about its information collection practices, as well as obtain verifiable parental consent prior to collecting personal information from children. To assist companies in complying with the verifiable parental consent requirement of the COPPA Rule, a technology services company called Imperium LLC developed the new method, which it hopes will streamline the consent process for parents and website operators.

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ABOUT ARENT FOX LLP

Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.