Internet and AdTech Law Blog

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  • Email Marketing (SPAM)
  • Enforcement Trends
  • Featured Posts
  • Federal Trade Commission (FTC)
  • Intellectual Property (IP)
  • Internet Defamation
  • Internet Law
  • Lead Generation
  • Litigation
  • Marketing & Advertising
  • Nutraceuticals & Dietary Supplements
  • NYC Department of Consumer Affairs (DCA)
  • NYC Department of Consumer and Worker Protection
  • Press
  • Privacy and Data Security
  • Social Media
  • State Attorneys General
  • Telemarketing
  • Telephone Consumer Protection Act (TCPA)
  • Trade Secrets

FTC Cracks Down on Use of Endorsements in Advertising

According to a proposed Federal Trade Commission (“FTC”) consent order, a Nashville-based company selling guitar-lesson DVDs would pay a $250,000 civil penalty and would be required to disclose its relationship with online affiliate marketers who falsely posed as ordinary consumers or independent reviewers.  The action is one of only a small few that the FTC…

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Metatag Use of Phrase Close to Mark Not Likely to Confuse

On February 15, 2011, the U.S. District Court for the Eastern District of Louisiana ruled that metatag use of a phrase that sounds identical (but is only spelled similar) to a protected mark does not necessarily create a likelihood of confusion because search engine results are highly technical (Southern Snow Manufacturing Co. v. Sno Wizard…

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GM Not Shielded from Liability by Communications Decency Act by Virtue of Employee Website Comments

On February 24, 2011, the U.S. District Court for the District of Arizona ruled that the Communications Decency Act’s immunity for “good samaritan” blocking and screening of offensive material did not shield General Motors Financial Services from a $200 million lawsuit arising from allegedly defamatory comments an employee posted on a competitor’s website (Mealer v.…

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Apple, Inc. Draws Privacy Complaints

According to a complaint filed in the U.S. District Court for the Northern District of California on February 15, 2011,  Apple Inc. violated the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act by sharing customers’ personal information with application developers who, in turn, allowed advertisers to track the users’ devices (Daniel Rodimer et…

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An Introduction to the “Do Not Track Me Online Act of 2011”

On February 11, 2011, Rep. Jackie Speier (D-Calif.) introduced the “Do Not Track Me Online Act of 2011.”  The proposed legislation attempts to impose additional regulat0ry burdens upon eCommerce.  The bill would direct the Federal Trade Commission to develop standards and provide enforcement for the Internet “do-not-track” mechanism.  In short, the bill would prohibit the online…

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FTC Regulatory Compliance and Online Consumer Protection

There are many conceivable ways to avoid a federal or state regulators’ spotlight.  However, attentive and deliberate complaint-monitoring may just be one of the best strategies that online businesses can adopt to avoid undesired attention from regulators related to privacy and marketing practices. The Federal Trade Commission’s (“FTC”) consumer protection division obviously have their eyes…

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Internet Law Blog
Category Overview

Richard B. Newman 2021 National Law Review FTC Enforcement and Regulation Go-To Thought Leadership Award

State Attorneys General (AGs)

Attorneys general are the “Top Cops” and regulators of their state. They act on behalf of citizens by exercising their broad consumer protection authority to enforce and investigate (CIDs) unfair and deceptive acts and practices (UDAP), including false advertising.

Blockchain + Cryptocurrency

A blockchain is a digitized and decentralized public ledger technology for cryptocurrency transactions, including those involving Bitcoin. A cryptocurrency is a digital or virtual currency that utilizes encryption techniques to secure transactions. As the primary federal agency for protecting consumers and promoting competition, blockchain presents a number of concerns for the FTC given the digital technology’s use by those acting unlawfully. FTC cases that involve virtual markets have now joined those involving traditional ones.

Cannabis and CBD

Regulatory oversight of the emerging cannabis industry is shifting at a rapid pace.  The jurisdictions within which the product is legal for medical or recreational purposes continue to expand.  Cannabis advertisers, growers, distributors, processors, investors and others must be mindful of conflicting state and federal marijuana laws.

Consumer Financial Protection Bureau (CFPB)

The U.S. Consumer Financial Protection Bureau (CFPB) was created by the Dodd-Frank Wall Street Reform and Consumer Protection Act. The CFPB’s operates as a watchdog to enforce the consumer financial product and service markets. It has consumer protection authority to enforce and investigate (CIDs”) unfair, deceptive, and abusive acts and practices (UDAAP).

Consumer Protection

Consumer protection laws and regulations exist so that government agencies are able to protect the rights of consumers. The Federal Trade Commission’s Bureau of Consumer Protection is charged with enforcing and investigating (CIDs) unfair, deceptive and fraudulent business practices, and educating consumers about their rights.

Copyrights

A copyright owner has the exclusive right to control the use and distribution of their creative work. Copyright law if a federal law and applies to any original works of authorship that are fixed in a tangible medium of expression. Fair use is a doctrine that allows for the limited use of copyrighted material without permission from the copyright holder.

Department of Justice (DOJ)

The U.S. Department of Justice (DOJ) enforces the law and defends the interests of the United States by preventing and prosecuting crimes and unlawful behavior.  The DOJ administers several federal law enforcement agencies including the Federal Bureau of Investigation (FBI).

eCommerce

Electronic commerce, also known as eCommerce, refers to the purchase and sale of products or services online. Electronic commerce law addresses such issues as compliance with applicable Internet and technology legal regulatory requirements.

Email Marketing (SPAM)

Commercial email marketing (SPAM) laws are governed by state and federal legislation. The federal  Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM Act) primarily focuses upon unsolicited and deceptive commercial email. California Business and Professions Code § 17529, et seq., perhaps the nation’s toughest anti-SPAM statute, is preempted by the CAN-SPAM Act unless falsity or deception is present.

Enforcement Trends

Consumer protection law enforcement covers a multitude of legal regulatory matters initiated by federal and state agencies. Advertising and marketing-related enforcement action trends include developing issues that impact the litigation of alleged violations of unfair and deceptive trade practices statutes, such as Section 5 of the FTC Act.

Featured

Featured blog posts showcase important news and developments in marketing, advertising and communications law.

Federal Trade Commission (FTC)

The U.S. Federal Trade Commission (FTC) enforces and investigates (Civil Investigative Demands) fraudulent, unfair and deceptive practices, as well as anticompetitive marketplace conduct. It possesses investigative authority pursuant to Sections 6, 9 and 20 of the FTC Act.  Following an investigation, the FTC may initiate a consumer protection or antitrust enforcement action. The basic consumer protection statute enforced by the FTC is Section 5(a) of the FTC Act. Consumer protection laws are enforced by the Bureau of Consumer Protection. Antitrust laws are enforced by the Bureau of Competition.

Intellectual Property (IP)

Intellectual property (IP) pertains to creations of the human intellect, including inventions; artistic and literary works, designs, symbols, names and images. IP law deals with the protection and enforcement of copyrights, patents and trademarks.

Internet Defamation

Internet defamation is a false and unprivileged allegation of fact made that damages an individual’s reputation, and that is published as a result of negligence or malice. Online libel is a written comment, review, post or article. Online slander is a spoken defamation, and can include, for example, a false allegation of fact via a podcast or audio file.

Internet Law

Internet law, or cyberlaw, refers to how laws govern how the Internet is used. It concerns the law of information technology and governs, without limitation, cybersquatting and domain names, data privacy, defamation, eCommerce, intellectual property, and marketing and advertising.

Lead Generation

Online lead generation is the process of connecting consumers that are interested in goods or services with the merchants or providers that provide them. It is a highly-regulated marketing method and involves the collection and use of consumer data by lead generators, lead aggregators and product/service providers via various digital channels.

Litigation

Litigation refers to the process of resolving disputes by initiating legal action via the public court system. State courts are established by the laws of each state. Federal courts are established under the U.S. Constitution and have narrower jurisdiction that state courts. Regulatory litigation includes government plaintiff initiated actions that include, without limitation, allegations of unlawful marketing, advertising, cybersecurity and privacy practices.

Marketing + Advertising

The Internet connects marketers to customers across the country and around the world. The general principles of advertising law apply online, regardless of the existence of space-constrained screens and social media platforms. The FTC Act’s prohibition on “unfair or deceptive acts or practices” encompasses online advertising, marketing, and sale.

Nutraceuticals + Dietary Supplements

The nutraceutical and dietary supplement industry is a heavily regulated one, including by the Federal Trade Commission. The role of the FTC is to ensure that consumers are provided with accurate information so that they can make informed decisions. It has primary responsibility for advertising claims. Strong scientific support for health-related claims is required by the FTC and the agency has taken action against supplement manufacturers, ad agencies, distributors, retailers, catalog companies, infomercial producers and others involved in deceptive promotions.

NYC Department of Consumer Affairs (DCA)

The New York City Department of Consumer Affairs (DCA) (now known as New York City Department of Consumer and Worker Protection) is an agency of the Government of New York City. The Division of Consumer Protection advocates consumers’ interest before legislative and regulatory bodies, mediates and resolves consumer complaints.

Press

News outlets call on Hinch Newman for commentary on marketing, advertising, regulatory communications and digital media related legal issues.

Privacy + Data Security

Federal and state laws regulate the collection and use of personal information. The FTC and state attorneys general enforce privacy-related promises made to consumers and initiate investigations and enforcement actions against organizations that violate consumers’ privacy rights and fail to implement reasonably adequate data security protocols.

Social Media

The FTC actively investigates and takes action against influencers and brands that fail to clearly disclose relationships when promoting or endorsing products through social media. The FTC’s Endorsement Guides provide that if there is a material connection between an endorser and an advertiser that might affect the weight or credibility that consumers give the endorsement, that connection should be clearly and conspicuously disclosed.

Online Sweepstakes + Contests

Online sweepstakes and contests are marketing tools that are utilized to increase sales and connect with consumers. State and federal laws apply to games of chance and games of skill.

Telemarketing

Telemarketing is the process of selling products or services over the telephone. It includes inbound and outbound commercial telephone calls. The Federal Communications Commission (FCC), the Federal Trade Commission and state attorneys general enforce telemarketing laws, including, but not limited to, the Telephone Consumer Protection Act and the Telemarketing Sales Rule (TSR) in order to protect consumers from fraud and provide privacy.

Telephone Consumer Protection Act (TCPA)

The Telephone Consumer Protection Act (TCPA) regulates telemarketing calls, auto-dialed calls, prerecorded calls, text messages and unsolicited faxes. The FCC is empowered to issue rules and regulations implementing the TCPA. Key legal considerations include, without limitation, whether an automatic telephone dialing system (ATDS) or pre-recorded voice is used when making the call, whether the recipient provided prior express written consent, whether the number phoned is a landline or residential line, whether the recipient’s telephone number is registered on a state or federal Do Not Call (DNA) list, whether an exemption from prior express written consent applies and whether consent has been revoked.

Trademarks

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. Trademarks are governed by both state and federal law. The main federal statute is the Lanham Act.

Trade Secrets

Trade secrets are confidential business information that provide a competitive edge. They can numerous items, such as sales methods, advertising strategies, business plans, customer lists and other commercial secrets. The unauthorized use of such information is also considered an unfair practice.

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