Most of us know the law tends to lag behind the marketplace. It is in the nature of most legal systems to try and balance statutory and regulatory authority—which makes rules based on experience or potential issues that will apply to future conduct—with judicial and regulatory decisions—cases that are adjudicated, create precedent and help shape the contours and boundaries of what is or is not permissible behavior within the statutory authorities.
In such a framework, we are often asked to counsel clients as to what is or is not acceptable when there may be little law, few regulations and sometimes no precedent. What to do? Well, as you may imagine, there is no simple answer. But there are some guideposts. A key guidepost is to consider common sense, best practices and some lessons learned from analogous legal precedent.
Take the subject of privacy, for example. List management, data mining, market segmentation, affiliate sharing, secondary uses of information, cookies, behavioral marketing and lead generation are common buzzwords in the advertising and marketing world—now supplemented with interactive and context-sensitive advertising, advergaming, pay per click, pay per action, gadgets and widgets, and the list increases and changes almost daily. It will not be long before the GPS tracking systems that help us navigate in our automobiles and that are available in many mobile phones and wireless devices, will become a marketing opportunity.
While there are no guarantees, subscribing to industry best practices where they exist, using some common sense, and considering how your activities and operations might affect your customers, suppliers, and business partners, and how they will be perceived by those constituencies and the regulators, are sound benchmarks.
The flurry of unwanted and unsolicited commercial emails prompted Congress to pass the CAN-SPAM legislation to limit and regulate commercial—read “advertising and marketing”—email messages. CAN-SPAM permits an opt-OUT mechanism…but is that enough? Most major companies—indeed member states of the European Union—require at least a single opt-IN, and mobile subscription services view double opt-in and authentication as the gold standard. Why would a regulator or court view it differently?
CAN-SPAM requires affirmative consent in order to legally reach the point where a consumer has deemed to have given permission to receive commercial advertising and marketing emails. Some companies use a “negative” consent approach—when the page loads, the consent box is already checked. Convenient? For a marketer, of course. For a consumer? Maybe. For a regulator? You tell me.
In the introduction, I mentioned GPS tracking via cell phone or mobile device. Not only might your parents, children, friends and colleagues be able to know where you are, but how about that mall you are driving by or that restaurant on the street where you parked or the retail shop you happen to be browsing as well.
In looking forward, think about what you would want from your business if you were a customer, based on what you already know. It’s your business, think how you want it to be perceived—by your customers, your suppliers, the regulators and courts and, yes, even your own employees. In looking at the present, think about the complaints you receive. Is there a pattern? A theme? Can you do better? Often the most expedient advertising and marketing approach is not the best one. Yes, it might be more cost effective, generating more responses—but it also might be the worst approach for your business and operations.
