Before you run that Web 2.0 promotion—whether it’s text-message voting, soliciting user video, or letting users “forward to a friend”—you probably want to run that campaign past a lawyer.
That’s the advice that attorney Kenneth Florin, partner with the New York-based law firm Loeb & Loeb, offered a small but attentive audience at the Promo Live conference in Chicago, which ended yesterday.
Among the laundry list of legal issues that next-generation Web campaigns can raise, Florin cited several recent lawsuits against broadcast TV shows that let audience members vote by sending text messages to a mobile short code. The suits charge that the voting schemes constitute “illegal lotteries” because viewers must pay a small charge to vote in addition to the text-messaging fee their mobile carriers impose.
Companies that solicit user-generated ads and other video content may want to think twice about mounting those campaigns on YouTube, Florin said. The video aggregator’s main site prohibits commercial use of its content without prior written permission. That also means a company can’t delete submitted material it finds objectionable. As illustration, Florin cited the backfire of a Chevy create-an-ad contest in which entrants lambasted the environmental impact of the company’s Blazer.
Companies can opt instead to run such contests on Web sites they own, Florin pointed out. But then they lose the benefit of YouTube’s overwhelming visitor traffic numbers.
In viral marketing, advertisers also need to be aware that programs inducing visitors to “e-mail this offer to a friend” may also need to comply with the CAN-SPAM regulations the Federal Trade Commission imposes on commercial e-mail. That might require marking the e-mail as an ad rather than as a message from a friend and making sure that the marketing company’s name, not the recipient’s friend, appears in the “from” line.
Finally, marketers should remember that online promotions will be viewed around the world. If they only apply to the U.S. or North America, their rules should specify that. Some foreign countries have specific rules regarding prize amounts, taxes, and even whether their citizens can accept prizes awarded outside their borders.
Making things increasingly difficult for marketers who want to stay out of court is the fact that in most areas, the legal cases and precedents that will govern Web 2.0 marketing are only now being set, Florin said.
“The law is five to 10 years behind the practices,” he said. “As always happens.”
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