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How to make sure your online advertising is legal - a legal guest post

(This is a guest post from our lovely friend, IP specialist lawyer Nóirín McFadden from K&L Gates)
Advertising online is a cost-effective way to reach many potential new customers. As with all new technology, there are some legal issues to consider. Make sure you invest your advertising spend wisely, and avoid action by regulators and the wrong sort of publicity by taking the following legal precautions.

1. Email marketing

Only send marketing emails to individuals who have consented to receiving them. As a slight exception to this rule, you may contact customers whose email addresses you have obtained as part of a purchase or negotiations for a purchase about similar products and services you offer, provided those customers did not opt out of email marketing at the time. In either case, you must include an “unsubscribe” link in every email. When customers unsubscribe, add their email addresses to a separate suppression list to compare with your contact list, to ensure that you do not inadvertently send emails to a customer who has unsubscribed.

2. Paid-for tweets

As the Advertising Standards Authority’s remit now covers advertising messages on company’s own websites and on social media controlled by companies, ensure that you comply with the ASA codes online. This includes ensuring that advertising is not misleading in its content or as to the fact that it is advertising, for example, in an apparently “viral” campaign. During the past year, the ASA has taken a dim view of tweets by celebrities advertising brands, where it was not obvious that the tweets had been paid for. It now recommends that such tweets are tagged #spon or #ad to ensure the public is not misled.

3. Social media advertising rules

Always check the particular social media service’s terms and conditions on use for advertising. Some services place restrictions on how their features may be used. For example, Facebook prohibits the posting of “unauthorised commercial communications”. This could include paid-for posts or setting up a user profile for advertising, rather than a company page. Other rules might require advertisers not to target certain advertising to users in countries where it is banned – for example, alcohol advertising is illegal in some countries and in most countries, may not be targeted at underage consumers.

4. Behavioural advertising

We don’t yet predict crimes before they happen, but one thing that the film Minority Report did correctly predict is the advent of targeted advertising based on individuals’ online behaviour and browsing habits. Understandably, this raises substantial privacy concerns, and a European umbrella group of advertising regulators and industry has issued best practice standards for online behavioural advertising [EASA BPR on Online Behavioural Advertising], which cover obtaining users’ consent and using a recognisable icon to identify any behavioural advertising. Expect to see national regulators, such as the UK’s ASA, start to implement guidelines similar to these soon.

5. Keyword advertising

After nearly five years, the High Court has finally given its ruling in Interflora v Marks and Spencer, deciding that M&S’ use of Interflora’s trade mark as a Google Adword constituted trade mark infringement. This was due partly to Interflora’s business model, which may have led consumers to think that M&S was part of Interflora’s network. It is too early to tell what effect this decision will have on search engine advertisers’ use of competitors’ trade marks, but it is certainly worth considering when choosing advertising keywords.

© 2013 K&L Gates LLP. All rights reserved.
Note: This is for information purposes only and does not contain or convey legal advice. The information herein should not be used or relied upon with regard to any particular facts or circumstances without first consulting a lawyer. This publication has been written from an English law perspective.

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