Marketing is already an intensive job. With the ROI of any marketing campaign taking considerable time to show, a marketer has his plates full quite often than not.
What makes it even more complicated is the growing scrutiny over data, which albeit a much needed trend, puts marketers even more in a worry.
For example, the GDPR regulations affect marketers worldwide, with the only qualification being collection of data from EU residents.
It seems that marketers in this day and age, has to be aware of both the revolving tech world and the legal world around them – which is why, I asked legal experts in the US – what are the legalities that marketers need to be aware of?
And, I got some really interesting responses. Let’s begin-
#1. Francesca Nicasio, Content Marketer at Payment Depot –
“As a content marketer, there are certain areas of the law I have to be aware of to do my job well. When marketing online you need to think about issues of privacy and data collection, intellectual property, and advertising.
In terms of privacy and data collection, you need to think about things like privacy policy, data security, and cloud storage. Intellectual property comes into play with things like trademarks and copyrights.
For advertising, you have to consider things like anti-spam laws.
Marketing is generally a creative endeavor but it isn’t the Wild West and it’s a good idea to be aware of and stay with the laws that regulate the industry.”
#2. Abby Hau, Head of Marketing at WellPCB –
“The Federal Trade Commission (FTC) is an agency in the United States authorized to protect consumers and promote competition.
The Federal Trade Commission has stipulated a set of guidelines that protects the interests of all consumers. These rules and regulations prevent unethical promotion and marketing practices across all mediums available for marketing and advertising.
The internet / social media platforms have become a valuable advertising medium for advertisers and marketers to connect with numerous consumers in the country. The same rules and regulations that apply to other forms of advertising apply to online / electronic marketing to protect consumers in the online space.
Here are some of the legalities, guidelines, rules and regulations set by the Federal Trade Commission that marketers and other stakeholders in the states ought to know.
Made in the U.S.A.
This rule is pretty simple, and it requires that for a product to be advertised or labelled as “Made in the U.S.A,” it has to be “all or virtually all made in the United States.” The main aim is to ensure that advertisers do not mislead consumers and should always be truthful.
Free Products
Numerous Ads are under this category, and a clear example is the “buy one, get one.”
Therefore, this implies the consumer will purchase one product for a price, not more than the regular price, and pay nothing for the other product.
The terms and conditions for such an offer should be described clearly by the advertising party. The following guide describes the use of the word free and similar representations. [Source]
Warranties and Guarantees
Warranties
The rule on attaching warranties to products is that written warranty terms should be available to the consumer before they commit to purchasing a product worth more than $15.
For Advertisements claiming to sell products that have warranties and can are purchased by mail, phone or computer, the entity responsible must inform consumers on how to access a copy of the warranty terms. [Source]
Guarantees
Another section in this rule is on guarantees to consumers on the advertised products.
Ads that contain phrases such as “satisfaction guaranteed” or “money-back guarantee” will automatically require the entity selling the products to give refunds for any reason.
An important thing to note is that the terms of the offer must be well explained to the consumer.
Environmental Claims
An entity must remain truthful and avoid deception or making false claims that the use of its product generates certain environmental benefits.
The Ads should only include significant benefits to the environment. Broad claims of benefits to the environment should be broken into specific aspects or avoided altogether to avoid deception. [Source]
Non-Compliance
The Federal Trade Commission enforces the above laws and many others such as telemarketing, mail and telephone orders, testimonials and endorsements. With most businesses focusing on online marketing to reach consumers globally, the FTC also monitors the Internet for potentially deceptive activities. Action for non-compliance within FTC’s jurisdiction include fines of up to $43,792per violation and orders to cease or desist. In some instances, violations could lead to injunctions by federal district courts and refunds to customers.”
#3. Evan Berglund, Senior Partner at the Gonzberg Agency –
“On the federal level, marketers need to know about intellectual property laws, and laws pertaining to truth in advertising — including regulations and enforcement of standards by the Federal Trade Commission (FTC), Federal Communications Commission (FCC), and, when relevant, those of the Food & Drug Administration (FDA) and related government agencies.
States, counties and municipalities also have their own laws and civil/professional codes — typically based on federal legislation — covering local advertising and other aspects of marketing, as well as their own regulatory/enforcement branches (e.g., Department of Consumer Affairs, Attorney General, District Attorney’s office, etc.).”
- Related Read: How Intellectual Property Laws Protect Trade Secrets
#4. Christian Velitchkov, Co-Founder of Twiz LLC –
“
- Keep it simple. The best way to get the most out of your giveaway is to put simple rules. The more simple you keep it, the better audience will come in. Your followers will be able to understand the rules easily and participate. If you put too many rules, your followers might not take part in the event.
- Promote, promote and promote. Create curiosity in your followers by telling them something new and good is coming for them. Make some mentions of your giveaway before it happens. It will make your audience more curious about what the giveaway is about. Give them a glimpse of the giveaway prizes. Utilize stories before, during, and after the event. You can even send out emails and encourage participation.”
#5. Maksym Babych, MBA PhD candidate, CEO at SpdLoad, an MVP development company for startups –
Copyright infringement is rampant on the Internet.
There are exceptions, though. You can legally use someone else’s created work if:
- It is considered “Fair Use.
- The copyright holder has declared it to be in the public domain.
- It is published under a Creative Commons or GNU license.
- The copyright holder explicitly gives you permission.
TERMS OF USE
If you do have permission to use an item, you must still adhere to the terms of use outlined in the licensing agreement.
THE CAN-SPAM ACT
The CAN-SPAM Act regulates what you legally can and cannot do in email marketing.
FTC ADVERTISING GUIDELINES
Advertisements must generally be identifiable as ads. This means that if it is not plainly obvious to consumers that they are looking at a paid advertisement, the ad must be labeled as such.
CONSUMER REPORTING LAWS
There are restrictions on how you can use data that’s gathered from social media. Primarily, this means you cannot sell gathered data about your social media followers.
LIVE VIDEO STREAMING
Video streaming has become increasingly popular on social media, allowing viewers to participate in Q&A sessions and watch events live.
However, without proper planning, your business could face a host of legal issues.
FALSE ADVERTISING
Simply put, all advertising must be truthful. Imagery and messaging cannot mislead buyers. You must also be honest about what buyers can expect from what you’re selling, with all claims substantiated.”
#6. Tim Absalikov, co-founder, and CEO of Lasting Trend –
“FTC Endorsement Guides and Disclosures:
Endorsements need to be honest. You should check that your paid endorsers or influencers have actually used your product or service.
Disclosures should be clear. If you involve endorsers, you should educate these influencers to follow the FTC guidelines.
FTC Policy Statement and Substantiation:
You need to have a “reasonable basis” for the claims, according to the FTC Policy Statement on Advertising Substantiation.
CAN-SPAM and Opt-Outs:
Subject lines should not be false or misleading.
Unsolicited commercial email should include an easy way to opt-out.”
#7. Chris Nddie, co-owner of ClothingRIC –
“The privacy landscape has changed in recent years. Marketers can no longer leave issues such as GDPR compliance to their legal teams.
Anyone that ignores data privacy and drives their focus solely on business objectives is opening their company to some serious risks.”
Companies should have a dedicated compliance strategy and marketers should be involved every step of the way. This is especially beneficial for small businesses that don’t have the budget to deal with complicated legal issues.
At the very least, marketing teams should be aware of basic marketing compliance guidelines so that risks could be minimized and the firms could experience sustainable growth.”
#8. David Reischer, Esq. Attorney & CEO of LegalAdvice.com –
“The 2003 CAN-SPAM Act requires mass sender’s of email to allow recipients to unsubscribe when promoting or advertising a commercial product or service through electronic communication. A company marketing a product or service must comply with the CAN-SPAM Act or face significant penalties.
As per the law, subscribers must be able to easily unsubscribe from future messages by providing an option at the bottom of the email, to unsubscribe.”
#9. Katherine Brown, the Founder & Marketing Director of Spyic –
“1. The CAN-SPAM act is put in place by the Federal Trade Commission in 2003 to prevent email spamming. The act requires that any email marketing must contain certain elements to be considered spam.
This includes a ‘from’ line, a valid email address from which the message will be, periodic statements that express the sender’s willingness to receive email from you, and lastly, a valid physical address to whom your emails will be sent.
2. COPPA is the Children’s Online Privacy Protection Act, which is an act to protect children’s privacy under 13 in the digital world.
This act prevents any organization under this law from collecting, using, or disclosing personal information without parental consent before ordering said information. This includes children under 13 with social media sites and other websites that are not age-restricted.
3. FIP (Fair Information Practices) is an act developed in 2000 by the U.S. federal government to maintain the integrity of the information collected about its citizens.
This act requires that any organization, which collects personal information about its customers, must provide this information in an easy-to-understand manner.
4. GDPR is an act in place in the EU that protects the privacy of all citizens in the EU.
It requires that when handling the personal information of any citizen in the EU, any digital marketer must be transparent when collecting this information and must provide easy-to-understand access to this information.”
#10. Gennady Litvin, attorney at Moshes Law –
“According to the Federal Trade Commission, there are three major types of laws affecting marketing:
- Privacy. The question of privacy arises when you need to send marketing emails to your would-be customers.
In the US there is no privacy law relating to online privacy (except California). So, make sure that you observe the law when it comes to collecting data of your customers living in California.
- Truth in advertising. It is important that all the information stated in advertisements be reliable.
- Anti-spam laws. All the CAN-SPAM requirements should be followed.”
#11. Matthew Mundt, the CEO of Hug Sleep –
“In marketing, email marketing is one of the most popular and important tools people use to retain their audience, keep people engaged with their content, and set reminders for people who were looking at their merchandise but never bought anything.
However, when building your email list, it’s important to have consent from the people you are emailing to send them your emails.
This can be done with online forms, sticky bars, and other various means, as long as the user is typing their email address in, knowing they will be receiving emails.
Do not buy email lists, as they can flag your emails as spam much easier, and there is a much lower engagement rate, so the money spent may not even go anywhere.”
#12. Jeff Goodwin, the Sr. Director, Performance Marketing & e-Commerce of Orgain –
“The laws that marketers need to know and look into the most are privacy and data protection laws.
Marketers want to be able to customize their ads towards the people who will most likely buy their products, but that comes with data collection, and to some, outright privacy violations, if they’re not careful.
Consent does need to be given to collect data when browsing online, especially in California and the EU, where tighter data laws are in place. It’s also important to know what data can be collected, and whether or not it’s tied to a person or to an anonymous dataset.
Overall, how you use and collect data is extremely important to your campaigns.”
#13. Mindy Serin, CEO of RunWith.Digital –
“Marketers need to be aware of implications of not keeping their own data safe. Of course, you do not want a data breach that includes social security and credit card information. But laws go beyond that.
Let’s say you work at an association and only one person has access to the database. So they then pull a list of members to market to and put it in a spreadsheet in the cloud for the email person to grab and market conferences to.
Depending on how that email list is locked down, it is now susceptible to hacking. That association is now at risk of a $50 million class action lawsuit from the 100,000 supporters whose personal data was breached.
California passed its own consumer privacy law (CCPA) in 2019; Virginia and Colorado followed this year; and dozens more states, as well as Congress, are considering their own privacy legislation. California’s law applies not only to for-profit company doing businesses in California, but also any company that buys, receives, or sells the personal information of 50,000 or more California residents, households, or devices.
Bottom line: keep your data safe. Many companies that house member information charge by user. Pay the extra fee so there is no password sharing and no emailing or cloud-sharing of member lists.”
#14. Kerri Feazell, CEO of Concurrent Productions –
“Every marketer needs to be familiar with FTC guidelines for customer testimonials. There are very specific rules and liabilities associated with customer endorsements. It’s worth reviewing for your own knowledge and including language in your client contracts and to make your clients aware of these guidelines.
All parties (including your marketing agency, your clients and even their customers giving an endorsement can be held responsible by the FTC).
In the video storytelling my company does, we’re familiar with these rules, which industries have more strict and specific guidelines so we can make sure our company, our clients, and their customers are aware of and follow all FTC guidelines.
For example, medical endorsements are highly regulated by the FTC. Additionally, financial advisors have their own regulations, overseen by the SEC. You can find the FTC document easily online by searching for “Guides Concerning the Use of Endorsements and Testimonials in Advertising.”
#15. Daniel Veiga, the founder of Danny Veiga Marketing –
“The protection that Section 230 of the Communications Decency Act offers against user-generated content is not all-encompassing. While it does protect you from defamation, intellectual property laws are an entirely different matter and could land your site in hot water if users post infringing material on your website.
Make sure to reference specific policies when dealing with copyright infringement so no one can hold you liable for any violations under current law.
Also, always keep your content plagiarized-free. Although plagiarism is not a crime, it can infringe an author’s intellectual property rights like copyright infringement. If the owner of copyright sues for this violation in federal court, they may win compensation or damages.”
#16. Ed Leake, Founder of Adevolver –
“Any company’s soul is marketing. To be productive and prosper in the marketplace, it must have a solid marketing strategy. However, despite how well-thought-out a marketing strategy is, one minor mistake can ruin everything. Here are some legalities that every marketer needs to know:
The first is copyright law. Whether it’s an article, a photo, a video, or a piece of music, you need to check if who owns the content or who made the original video for you to ask permission if you need to use it for your business.
Second, false advertising law. Advertising must always be truthful. Buyers cannot be misled by visuals or content. You must always be transparent about what consumers might expect from the product you are offering, with any statements backed up by facts.
Third, live video streaming. On social media, streaming video has gone mainstream, allowing users to engage in Panel discussions and stream live events. On the other hand, your company could face plenty of legal concerns if you don’t plan.
For example, it is when you live stream and feature an employee/ customer without their consent. Another is using a piece of copyright music and put it in your background without proper permission from the owner.
To avoid some legal issues, please stay informed or updated on any legalities in running a business.”
#17. Cristian Ungureanu, Senior Growth Marketer for Switzerland-based b2b SaaS company QuickMail –
“Cold email, widely regarded as ‘spam’ in the US, is actually quite legal under the right circumstances. After all, lead generation companies and cold email software (such as ourselves) wouldn’t exist if it weren’t legal.
The governing regulation for the legality of cold email in the US is called the CAN-SPAM Act, and the rules it outlines are pretty clear and simple: use accurate information about yourself and your company, don’t use deceptive language, offer recipients the possibility to opt out and honor it within 10 days, and display your company’s correct physical address.
If you follow these rules, you can safely grow your business by sending cold emails at scale.”
#18. Imani Francies, a marketing expert with FreeAdvice.com. –
“Terms of Use
Even if you have the authorization to use an item, you must still follow the license agreement conditions of use. Various Creative Commons licenses, for example, may have different criteria, such as limitations on commercial usage or the freedom to modify the work.
To stay legal, you must strictly adhere to the conditions of use.”
#19. Lynda Fairly, Co-founder and Marketing Head at NumLooker –
“In my opinion, many marketers seem to get by without knowing the legal consequences that come from different marketing tactics or business functions. It’s pretty standard for a marketer to think that they won’t be fined if they don’t follow a specific rule, and if this is the case, I want to make a few things clear.
One of these rules is called COPPA (Children’s Online Privacy Protection Act). This rule is meant to help protect children’s privacy under the age of 13, and it is all about not getting kids hooked on your products or services.
So, what will happen if you violate this rule?
First off, you must have a written plan stating that you comply with COPPA, and if you don’t, Google will not let your ads appear.
Also, Google will make it difficult for any posts or comments for sites for kids, games, or products directed to minors. That is to say that if you are not compliant, you can get in big trouble.
Here are some steps that you can take to make sure your business is compliant with COPPA:
-Make sure your website has a privacy policy page. It should be easily accessible, and it should have the following information available for the parents of minors that visit your site. Your contact information, details regarding how personal data will be handled or collected, and how they could request changes to their data.
-You should also have an email address that parents can reach you at if there are any changes they want to make to their information. This email account should not be used for any other purposes, and it should be kept separate from your business identity.
-Your website must contain a link to your privacy policy page. This policy must state very clearly how you will give children the option not to provide information about themselves. The site must also explain that giving out the data is voluntary.”
#20. Kim Chan, Founder and CEO of DocPro –
“The first thing every marketer should know is privacy law.
Not only your local privacy law, but if you are also marketing to Californian or European customers, CPRA and GDPR.
In the age of technology, nothing is more valuable than data. Personal data protection is getting more and more important as more of our private information is increasingly shared online every day.
Marketers have to be aware of the restrictions impose by Privacy Law to determine which parts of it apply to them. For example in relation to cold calling, unsolicited voice and spamming. In addition, if your business requires a customer to provide personally identifiable information, you need to make Privacy Policy a part of your customer/client agreements and publish it on your website.
[Two,] Marketers should get your essential business contracts in order. Most marketers focus on sales, marketing and revenue generation – it is easy to neglect the legal aspects that are tedious, but equally as important.
A lot of marketers even rely merely on trust and verbal agreements when conducting business in their partners, suppliers, and customers rather than taking time to draft contracts. You must understand that failure to document these agreements and understandings properly can prove fatal to business and brand image in the event of a dispute / litigation.
You will need agreement to specify the commission or revenue share you are entitled to receive. And also how long the right would last. This can be done through a typical marketing agency agreement.”
[Editor’s note – Kim Chan offers examples of documents that any marketer may peruse. Here’s a link to that.]
#21. Jonathan Zacharias, the Founder of GR0 –
“Every marketer should know and understand three basic buckets of legalities: (1) email marketing customer rights, (2) copyright laws, and (3) privacy policies.
First, each and every customer who receives an email blast from your respective business must have actively and knowingly signed up, while an “unsubscribe” option [and] your mailing address must be explicitly noted on every sent email.
Secondly, companies must abide by copyright laws. This includes not using intellectual property, branding, or imagery that isn’t yours, while also making sure that your own organic logo + branding is copyrighted and trademarked.
Third, there must always be an explicit “terms of use” and “privacy policy” included within your website.
Why are each and every one of these buckets important? Simply put, not abiding by these regulations will put the company at risk of being blacklisted by search engines such as Google, and, even worse, sued by external sources.”
#22. Seth Price, Founding Partner of Price Benowitz Accident Injury Lawyers, LLP –
“A law that marketers should know one which falls under Section 5 of the Federal Trade Commission Act. To put it simply, this law states that unfair and deceptive acts are unlawful. This means that if you use your marketing in a way that misleads consumers, you could face legal consequences.
This may be that you withheld certain information about the product, that the material you used affects consumers’ conduct, and a number of other factors. You need to be honest and open with your audience, this is one of the best ways to avoid running into any trouble down the line.”
#23. Mark Nieds, Chair of the Intellectual Property Group at Henderson, Franklin, Starnes & Holt, P.A –
“Marketing is a combination of science and art. Scientifically, demographics, media reach, and clicks are quantifiable and used by marketers to locate consumers and direct overall strategy.
Artistically, marketers have to determine what triggers and messages consumers will react to and create their brands around those. Both the art and science sides of marketing can implicate legal issues that can become significant. Here, we list four issues that marketers must be aware of and avoid.
- Privacy. In the quest for consumer data, marketers must be aware of and preserve the privacy of their consumers. Privacy law in the United States is evolving and consumers are gaining more rights over the information they share with marketers and what marketers can do with that data.
Historically, California has had the most stringent and consumer-friendly privacy laws and now other states are revising their privacy laws and many are adopting standards that parallel California’s.
Because this is a rapidly changing area and laws vary from state to state, it is important that marketers are aware of and comply with the privacy laws in the states where they do business or collect consumer information.
- Data Security. Unfortunately, it is no longer a question of if a business will suffer a data breach, but when that breach will occur. Marketers, especially those who are involved in Internet marketing and sales, must be ready for the inevitable and preparation is paramount.
Just as smart businesses have succession plans, key employee life insurance, COVID protocols, and weather emergency plans, they must also have data breach response plans in place.
Along with changes in privacy laws, many states are updating and revising their laws and regulations regarding data security and the requirements that must be followed on the heels of a data breach. To avoid future problems and potential liabilities, marketers should take time now to understand the data security laws impacting their business and prepare breach response plans.
- Naming problems. Smart marketers know that first impressions and recall drive sales. Usually the first thing a consumer encounters with a product and what they remember is the name of that product, so a good name is extremely important. Because the name is so important, marketers must consider not only the business aspects of a name but also the legal aspects.
Product names are protected by trademark law and the core purpose of trademark law is to prevent consumer confusion. Trademark owners can prevent the use of similar marks by others. When brainstorming product or brand names, marketers must keep in mind the ultimate question of whether a name they think of is one that can actually be used in the market.
This entails determining whether a name potentially infringes on a pre-existing right. Failure to consider the impact of trademark law during the product naming process could result in launching a product and immediately drawing an infringement lawsuit and potentially having to re-brand.
- Opinions and Backup Facts. Marketers know the most powerful advertising is comparative advertising. However, while comparing one’s own product to a competitor’s and pointing out where the competitor falls short can be marketing gold, it can also be a potential hornets’ nest of legal problems. Comparisons can be couched in terms of facts or opinions.
When making comparisons on facts, the facts must be objectively verifiable. If an auto manufacturer says their car can go zero to sixty in less time than a competitor’s that must be verifiable or the claim is false and misleading.
On the other hand, to say the seats in one car are more comfortable than the seats in another is opinion and relative to the person sitting in the seats. There is more leeway with an opinion claim like this. Where things can get difficult is when fact and opinion collide. To say one car is “more fuel efficient” than another implicates this issue.
“More fuel efficient” can be relative, i.e. city versus highway versus climbing hills, etc., and one car can be more efficient than another in one setting but not another. When wading into comparisons like this, marketers should be aware of what leeway they have and what backup they need in order to be safe.”
#24. Martin Luenendonk, CEO of FounderJar –
“Keeping legalities out of the way and sticking to what’s ethical and legal is the best way marketers begin their campaigns. As a CEO myself, entanglement with the law because of failure to know of it can cause irreparable damage to your brand and your finances.
To steer clear of breaking the law, marketers need to know the following to avoid legal backlash.
- CAN-SPAM Act or the Controlling the Assault of Non-Solicited Pornography And Marketing is a law passed in 2003. Though it doesn’t prohibit the use of email advertising, it does prohibit deceitful or misleading practices related to email advertising.
For instance, neglecting to identify where or from who the email is can be considered misleading information. To avoid this, make sure that your subject line says what the content of the email is about.
- The FTC (Federal Trade Commission) revised its policies in 2009 to address concerns regarding the integrity of endorsers, promoters, and bloggers.
The law states that influencers or endorsers are required to disclose their connection to the brand or company they are endorsing. For marketers to prevent this damaging mistake, they always need to be transparent, especially when it comes to online marketing.”
#25. Catlan McCurdy, the founder and Principal Attorney at McCurdy, LLC –
“One category of legal risk a marketer in the United States should keep in mind is the use of intellectual property in marketing materials.
Each piece of material in a marketing product should be evaluated on a case by case basis to (a) determine where the material came from and (b) understand the rights and restrictions surrounding the use of such material. If the end product is a cake, ask each time you add an ingredient to form the batter:
- “Where did this ingredient come from?”
- “Am I allowed to use this ingredient?”
- “If I’m allowed to use this ingredient, am I allowed to use it in this way, and is there anything else I need to do to the ingredient before I fold it into the batter?”
Depending on where the material was sourced and the original rights granted by the author or creator, photographs, artwork, fonts, statistics, and music may or may not be allowed to be used in marketing materials.
For example, if the photographic release from a person allowed for that person to be photographed in connection with a news story, that same photograph may not be able to be used in marketing materials without obtaining an additional release from the subject of the photograph.
The agreement with the photographer would also need to be reviewed to determine if the photographer licensed the photograph for marketing material purposes or if the license needs to be expanded to include commercial use.
In some cases, such as the use of statistics for example, the underlying license agreement may require that use of the data in marketing materials include proper attributions to the licensor or other relevant data aggregator parties.
Be sure to review your underlying license agreements before you use any materials in marketing products so you know if you can use the material and how to use it. Ask your legal department to assist you with this review or consider hiring outside counsel to review your agreements and draft a chart of easy-to -reference parameters for future use.
And remember that just because something is available on the Internet does not mean it is part of the public domain. ”
Pretty complicated right? Don’t worry!
If you have any questions, drop in a comment, or if you want a one-on-one consultation, shoot us an email. I recommend that you also check out our list of services so as to check if we can help you out in any other way as well!
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