Adlaw By Request : Advertising & Marketing Lawyer & Attorney : Reed Smith Law Firm : AdLaw By Request & KidAdLaw

FourSquare, Loopt, Twitter, and even Google Buzz are testing the intersection between social networking online and real world, location-dependent activities. For example, you can use Loopt to see which of your friends are nearby, or you can earn points and badges on FourSquare by visiting locations around you. Even some companies are starting to specialize in helping advertisers prepare location-aware advertisements, which has created some (humorous) responses by the public. 

But location-aware social networking has a dark side as well. Podcaster Israel Hyman was robbed after he posted a tweet on his Twitter feed saying he had arrived safely in Kansas City. The problem was that he did not live in Kansas City. 

So it may not come as a surprise that a new site is trying to raise awareness of this problem. The site – available at PleaseRobMe.com – aggregates postings from various social media sites that involve the poster being away from home. The result is a laundry list of people who are not in their homes, and where those homes are located.

According to the sites’ operators:

The danger is publicly telling people where you are. This is because it leaves one place you’re definitely not… home. So here we are; on one end we’re leaving lights on when we’re going on a holiday, and on the other we’re telling everybody on the Internet we’re not home. It gets even worse if you have "friends" who want to colonize your house. That means they have to enter your address, to tell everyone where they are. Your address.. on the Internet.. Now you know what to do when people reach for their phone as soon as they enter your home. That’s right, slap them across the face.

As an attorney, my mind immediately jumps to what level of liability PleaseRobMe.com may face for its work. After all, it could be assisting would-be robbers with their nefarious activities, which can raise aider/ abettor liability.

Professor Rebecca Tushnet raised the interesting question of whether the Communications Decency Act (47 U.S.C. § 230) would insulate PleaseRobMe.com from liability. As discussed on this blog in the past, the CDA (as 47 U.S.C. § 230 is commonly called) immunizes interactive computer service providers from liability arising out of the speech of another. The immunity also extends to reposting speech by another (see, e.g., Barrett v. Rosenthal). 

However, reposting immunity can be lost under two exceptions. First, under the Roommates.com decision, CDA immunity can be lost if the interactive computer service provider contributed to the speech in a material way. Second, CDA immunity can be lost if the information that was reposted was illegal (see, FTC v. AccuSearch). Here, it would be hard to argue that the information being reposted by PleaseRobMe.com is illegal. But the Roommates.com material contribution exception is less clear. Does data aggregation materially contribute to the individual data points that make up the aggregate? In other words, is a fact (e.g., Drew is in the office) changed in some way if it is presented within a list of other people who are (or are not) in certain places? If so, then CDA immunity may be lost.

Certainly, this question is difficult to answer, and I anticipate that if a case is brought against PleaseRobMe.com, it will turn upon the facts at hand. One can only hope that if a case is brought against PleaseRobMe.com, it will not be a situation where bad facts make bad law.

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NY Times: Anger Leads to Apology From Google About Buzz

Google moved quickly over the weekend to try to contain mounting criticism of Buzz, its social network, apologizing to users for features that were widely seen as endangering privacy and announcing product changes to address those concerns.

Adweek: Gauging Customer Loyalty

Consumers approve of rewards programs ... sort of

Getting new customers is expensive, which is why sensible marketers toil to keep the ones they've already got -- and to get them buying as often as possible. As such, loyalty programs have become a conspicuous part of the marketing landscape. But how do consumers feel about such programs? A recently released survey by the Chief Marketing Officer (CMO) Council takes a close look.

Excite News: Privacy group files FTC complaint on Google Buzz

A privacy watchdog group complained to federal regulators on Tuesday about Google's new Buzz social networking service, saying it violates federal consumer protection law.

Brandweek: Behavioral Targeting to Grow

With the effective mixing and mining of audience data becoming increasingly important to online advertisers, the role of behavioral targeting has grown more central, according to eMarketer.

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As many of our readers are likely aware, the Credit Card Accountability, Responsibility and Disclosure Act (the “CARD Act”) largely becomes effective in just a few days – February 22, 2010. The CARD Act was signed into law in May 2009 to establish new regulations, standards and disclosure requirements for open-end consumer credit plans. In addition to several entirely new regulations that card issuers will be required to follow and implement in the course of their issuing processes and procedures, the CARD Act amends the Truth-in-Lending Act.

One particular regulation contained within the CARD Act requires that a card issuer take into account a consumer’s ability to pay before opening a new consumer credit account and/or increasing the person’s pre-existing credit limit. While the spirit behind this regulation is certainly admirable, how is this supposed to play out in the marketplace?

In October 2009, the Federal Reserve Board (“FRB”) proposed regulations that would have required an issuer (like a Macy’s or Home Depot, that issues its own department store cards) to consider a consumer’s income, assets and current financial obligations. The FRB further proposed that the issuer would be permitted to rely on information provided by the consumer, as well as information in a credit report. 

Understandably, retailers expressed serious reservations over these proposed regulations. The mere thought of asking a consumer to disclose his/her income or asset worth at a check-out counter (where most store-brand credit cards are issued) made these retailers shudder. Moreover, there was even concern that a consumer who wished to apply for a store-branded credit card may be required to provide underlying substantiation and documentation, like a tax return, pay stub or W2 to verify such person’s income. Besides the embarrassment this would inevitably cause a consumer in having to show intimate, personal records to essentially complete strangers, retailers expressed concern over the likelihood of consumers abandoning purchases at the point of sale, and the delay that would result from a significantly more involved application and approval process.

Fortunately for retailers, the FRB provided further guidance (and a touch of reality) to clarify its proposal when it finalized the CARD Act regulations in anticipation of the looming February 22, 2010, effective date. Essentially, under the regulations, a card issuer must still review any reasonably available information regarding a consumer’s income, assets or current obligations before issuing or increasing credit. However, an issuer may “consider information obtained through any empirically derived, demonstrably and statistically sound model that reasonably estimates a consumer’s income or assets.” While the regulation still requires some heightened level of checks and balances in determining a consumer’s credit-worthiness when issuing credit at a point of sale, the regulation seemingly allows the issuer (aka retailer) to rely upon a credit report or some other third-party verification without having its team of accountants, bookkeepers and credit analysts pore over a consumer’s tax return in the midst of a President’s Day Sales Bash.

Why this Matters: Based on the FRB’s revised guidance and the allowance of a retailer to make credit decisions on the basis of credit reports and the like, little will probably change on a day-to-day basis, except that what was previously good business practice will soon be law. Certainly retailers and consumers should be pleased with the outcome of this legislation, though the real question will now be what additional measures retailers will adopt and integrate into their credit review process in this climate of consumer protectionism to avoid not simply having bad debt on its books, but also a lawsuit or investigation.

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NY Times: FTC Moves May Signal Start of 'Greenwashing' Crackdown

The Federal Trade Commission is expected to crack down on "greenwashing" when it updates its environmental marketing guidelines for the first time since 1998.

MSNBC: Weight Watchers, Jenny Craig settle over ad

A weighty battle between the two companies over ad campaign

Jenny Craig has agreed to end an ad campaign featuring actress Valerie Bertinelli as part of a legal settlement with Weight Watchers International, the dueling companies said Friday.

NY Times: Of Dr. Seuss and Coal Gasification

The company that protects the copyrights on the works of Theodor Geisel, better known as the children’s book author Dr. Seuss, has sent a cease-and-desist letter to a Massachusetts company looking to get into the coal business under the name Lorax — the title character of a story published in 1971.

Portfolio.com: NFL: The Kia Ad Should Have Stayed in Vegas

The casino conglomerate MGM Mirage pulled off an end run around the NFL’s ban on Las Vegas advertising during Sunday’s Super Bowl thanks to a Kia Motors ad—and the NFL is not pleased.

DIRECT Mag:  Digital Marketing Growth Will Be Fueled By Social, Mobile, E-mail: Study

The boom areas for marketing should come as no surprise: Mobil, e-mail and search engine marketing growth will spur a 17% increase in digital marketing spending, according to a study from e-mail and marketing firm ExactTarget.

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Coming soon to many websites near you (possibly…), you may find a slew of little blue “I” icons populating the Internet. This icon represents the latest collaboration between the Federal Trade Commission, Congress and the advertising industry to create a standardized icon, known as the “Power I,” intended to notify consumers of the online behavioral advertising practices and policies that are followed by specific websites and advertisers. Online behavioral advertising is essentially the practice carried out by some advertisers to collect and use consumers’ surfing history, demographic profiles and other personal data to deliver ads tailored to their unique and individual interests. More formally, online behavior advertising is “the collection of data from a particular computer or device regarding Web viewing behaviors over time and across non-Affiliate Web sites for the purpose of using such data to predict user preferences or interests to deliver advertising to that computer or device based on the preferences or interests inferred from such Web viewing behaviors.”

The “I” is intended to essentially function as both a trusted standard in the area of behavior advertising that consumers will immediately identify, and also as a link that, when clicked on, will take a user to a separate web page detailing why particular ads are being shown to him or her. Although websites or ads are not legally required to post the “I,” the leading trade associations behind this initiative are clearly hoping that the advertising industry will adopt this new measure, and thereby avoid the need for further government action and regulation. A detailed description / PR campaign of the “Power I” initiative has already been launched and can be accessed here, and a second PR campaign is underway.

While it’s far too early to gauge the effects of the Power I, its rate of adoption among industry players, and its success in staving off governmental action, this program is certainly an important step in the right direction, namely, a step toward further transparency and consumer education. This author wants to know if we’re likely to see a “Power C” for user consent and/or a “Power R” for data retention practices.

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NY Times: A Little ‘i’ to Teach About Online Privacy

A LITTLE blue symbol is carrying big implications.

Trying to ward off regulators, the advertising industry has agreed on a standard icon — a little “i” — that it will add to most online ads that use demographics and behavioral data to tell consumers what is happening.

Forbes: FTC To Silicon Valley: Tech Companies Should Protect Consumer Data

Washington wants to know: Why can't technology protect consumers' privacy instead of violating it?

The Federal Trade Commission met today in Berkeley, Calif., with corporate technology leaders and privacy advocates, challenging them to create ways to protect consumer privacy online. The FTC is encouraging technology companies such as Facebook and Apple to come up with self-regulatory tactics that will protect consumers without squashing corporate innovation.

NY Times: F.D.A. Aims at Doctors’ Drug Pitches

In the rarefied world of fashion magazines, beauty editors have often relied on a coterie of prominent dermatologists and plastic surgeons to keep them current on advances in cosmetic medicine. This symbiotic relationship has benefited magazines eager for beauty scoops and doctors seeking visibility — and patients.

But now the Food and Drug Administration has cracked down on one of the most widely quoted cosmetic doctors, sending shudders through the ranks of opinion leaders in fashion publishing and vanity medicine.

Multichannel Merchant: Live from NRF: Consumers Want Cross-Channel Synergy

As a merchant, you may consider yourself to be multichannel. But the customer views your bricks-and-mortar stores and Website as one entity, according to a survey shown Monday at the National Retail Federation's Annual Convention and Expo.

ABC News: Google's Digital Book Settlement Still Under Fire

Google's digital book settlement ripped by rivals, critics trying to get judge to reject deal

Google Inc.'s bid to secure the digital rights to millions of books remains under attack from rivals and other critics trying to block a revised legal settlement that would unlock a vast electronic library.

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This post was written by Alun J. Jones and John P. Feldman.

On January 6, 2010, the UK's advertising watchdog, the Advertising Standards Authority (the ASA), issued a decision upholding complaints it received against a poster that promoted the Finnish airline, Finnair. The poster featured an image of an Airbus flying above Finland's coastline and stated, "Be eco-smart. Choose Finnair's brand new fleet."

Finnair supported its statement on the basis that it had a new fleet of planes and it structured its flight routes with an eye toward increasing fuel efficiency. The ASA did not find that support very compelling. ASA decided that readers were likely to interpret "eco-smart" as analogous to "environmentally friendly," implying that flying Finnair would have little or no detrimental effect on the environment. Furthermore, the ASA required robust substantiation for the fuel efficiency claims beyond Finnair's emissions data. ASA even questioned whether the ad was clear enough in defining the nature of the comparison: Was Finnair comparing its old fleet with its new fleet, or its new fleet with other airlines?

That general environmental claims lead to serious headaches at the ASA is nothing new. Consider the ASA's September 2009 decision upholding complaints against the Malaysian Palm Oil Council's "Palm Oil-The Green Answer" article. But, how specific do you need to go in order to be clear of a "general environmental claim"?

In a decision involving the carrier EasyJet, the ASA reviewed the claim "Because we operate Europe's most modern fleet, our planes emit 30% fewer emissions per passenger mile than traditional airlines. So you can enjoy your holiday safe in the knowledge you'll have done more for the environment than Gordon's taxes ever could." Similar to the Finnair ad, to be sure, but in the case of EasyJet, ASA held that the ad did not mislead consumers into believing that traveling with EasyJet was environmentally friendly. According to ASA, consumers were likely to understand that all airlines would cause environmental damage. There had also been a great deal of press regarding the doubling of Air Passenger Duty by the British government, and the advertisement would likely be read in that context. However, EasyJet based its calculations for the "30% fewer emissions" claim primarily on the number of passengers they could carry in their planes. Because they could carry more passengers than most other airlines, it followed, according to EasyJet, that the CO2 emissions per passenger were 30 percent less. There was no evidence that supported the claim that EasyJet's younger planes had 30 percent fewer emissions per passenger mile. Thus, ASA found the ad to be partially substantiated and partially in breach of the CAP Code.

That ASA hates open-ended, general environmental claims is clear. But, it is too easy to conclude that "green" claims are impossible for industries that are inherently big contributors to greenhouse gases. As the EasyJet decision shows, careful casting of the claim can make a world of difference. In another example, ASA accepted the substantiation of EDF Energy, which promoted itself in conjunction with "Green Britain Day," using the advertising line, "Brought to you by EDF Energy, sustainability partner of London 2012." Even though this advertisement produced far greater public outcry than the Finnair advertisement (149 complaints versus 4), ASA found the promotional line to be permissible.

Why This Matters

Specificity and clarity is the key. All of the relevant guidance in the UK on environmental marketing – the CAP Code, the ICC Code, Clearcast Guidance and DEFRA's Green Claims Code, all of which are informed by the ISO's standard 14021 – make it very difficult to use broad, general "green" claims. Linking vague descriptions, such as "friendly" or "kind" with words such as "eco," "ozone" and "nature," is to be avoided according to the Codes, as is the use of terms such as "sustainable," "green" or "non-polluting." This is in line with the detailed guidance given on the use of some specific terms, such as "biodegradable" and "recyclable" by ISO 14021. 

So, why did Finnair fail when EasyJet flew (in part)? Finnair's use of "eco-smart" was probably just too general and too vulnerable to multiple interpretations. Somewhat ironically, if Finnair had been more comparative in its advertising, comparing the age of its fleet with that of other airlines, and drawing a direct environmental benefit claim from that fact, ASA might have been less critical. The more hard-hitting but specific claim could have given Finnair the cover, whereas the general "eco-smart" claim did not. We often see comparative claims given more leeway than absolute environmental benefit claims, which can be misinterpreted as communicating a greater "green" message than may be intended. And, finally, as the EasyJet and EDF Energy cases suggest, placing an environmental message into a context that touches on current affairs can help to demonstrate that the public is cognizant of the limited environmental message.

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Environmental Leader: 72% of UK Consumers: Give Us Carbon Footprint Labels on Food

New research from the Newcastle Business School at Northumbria University suggests that nearly three-quarters of UK shoppers are in agreement with government plans to go forward with a voluntary carbon footprint label on food items.

Environmental Leader: Taiwan Working on Carbon Footprint Labeling for CPGs

Taiwan is the latest nation to float a plan to label the carbon footprint of common consumer packaged goods, following in the footsteps of the UK and Sweden.

TV Week: Longform Ads Pull in Revenue but Raise Ethics Questions

The package is presented like something you’d see on the local news rather than like a traditional infomercial. Sometimes it resembles a lengthy feature story; other times it’s an interview with a local doctor or businessman, or a roundup of local tourist destinations.

Excite News: 4 nations clear hurdle for non-Latin Web names

Egypt, Russia, Saudi Arabia and the United Arab Emirates are the first countries to win preliminary approval for Internet addresses written entirely in their native scripts.

Environmental Leader: Wal-Mart, Best Buy, HP, Dell, Toshiba Establish ‘Green’ Electronics Label

Retailers Wal-Mart and Best Buy, together with electronics suppliers Dell, HP, Intel and Toshiba, have banded together to create a system to help consumers identify “green” electronics, according to a press release.

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