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

This post was written by Avv. Felix Hofer, and first appeared in Volume V of the Gala Gazette.

1. Implementing both, EU Directive 2002/58/EC of July 12th, 2002 (Directive on privacy and electronic communications) as well as Directive 2000/31/EC of June 8th, 2000 (Directive on electronic commerce) the Italian legislator decided that unsolicited commercial communication must always to adopt a strictly “opt-in” approach. The choice clearly didn’t drive marketers into a state of happiness: they felt that their business was unnecessarily harassed by complex and costly burdens. Therefore they decided initially not to care too much about the requirements set by the new regulations and to continue in their proven aggressive marketing techniques.

In doing so they nevertheless had underestimated a couple of factors: on one hand, consumers’ reaction (who became more and more annoyed by SPAM and behavioural targeting and were no longer tolerant of disturbing intrusions into their sphere of personal intimacy), on the other hand, the role of a Special Authority (the Privacy or Information Commissioner - DPA) in charge – in all countries members to the EU - of supervising proper compliance with the key principles of protection of personal data (and quickly focusing on the purpose of achieving a correct balance between consumers’ privacy and electronic marketing.
 

Click here to read the full article as published in Volume V of the Gala Gazette.

• Email This
• Print
• Comments
• Trackbacks

In September 2008, the Virginia Supreme Court unanimously ruled that Virginia’s then-enacted anti-spam laws were per se unconstitutional on the grounds that they violated the First Amendment right of freedom of speech. At the time, Virginia’s anti-spam laws prohibited the sending of unwanted, unsolicited e-mails, both commercial and non-commercial.

The Virginia Supreme Court argued that since the law failed to make any distinction between the different types of emails a user could be sending, it would have prevented political, religious and other messages covered under the First Amendment, as well as general commercial solicitations. The court also noted that the statute failed to meet strict scrutiny, pointing out that similar anti-spam statutes had been enacted by several states, as well as by the federal government (which passed the CAN-SPAM Act in 2004), but all those statutes were narrowly tailored to target commercial spamming. Justice G. Steven Agee, who wrote the unanimous opinion for the court and cited a 1995 U.S. Supreme Court case, stated “The right to engage in anonymous speech, particularly anonymous political or religious speech, is ‘an aspect of the freedom of speech protected by the First Amendment.’” Along with the State Supreme Court striking down this law, its decision reversed the conviction of Jeremy Jaynes, the first person in the United States convicted of a felony for sending unsolicited bulk-emails. Jaynes was once considered one of the world’s most prolific spammers, sending mass emails anonymously by using false Internet addresses.

Immediately following this ruling in 2008, Virginia Attorney General Robert F. McDonnell promptly announced that he would appeal the case to the United States Supreme Court. Earlier today, the U.S. Supreme Court elected not to consider reinstating Virginia’s anti-spam law.

• Email This
• Print
• Comments
• Trackbacks

The use of ad-blocking programs has recently received considerable attention in the media, brought about in large part by the proliferation of various plug-ins or configurational ad-ons that, in one manner or another, enable the blocking of some or all advertising (or content that seems like advertising) by Internet web browsers (e.g., Adblock Plus” plug-in Firefox). In addition, most of the popular commercially available anti-virus, anti-adware and anti-malware programs also provide ad blocking capability. By implementing and using ad-blocking software and extensions, the user is able to remove or block some or all advertisements from being viewed on web pages.

There has always been a natural balance (some would say ‘tension’) between the consumer’s right to privacy and the marketer’s desire to know more in order to reach the right customer. Although clearly context and culturally sensitive, consumers tend to cling to various degrees and aspects of privacy as a means of protecting themselves from unwanted intrusion into their lives. Consumers, however, often willingly and knowingly give up certain privacy protections – although they may not view it that way – in order to receive the benefits and advantages of offers and purchasing opportunities more tailored to their needs, and to avoid receiving “junk.” Marketers, on the other hand, always want better, more timely, and more accurate segmented data, so that advertising can be focused and can cost-effectively reach those who are more likely to have an interest in buying. But marketers know that reaching too far into the minds and hearts of consumers, without their permission, can backfire and cause mistrust and disdain – not a good thing when you are trying to convince a customer to buy your product or service. Witness the public reaction to the launch of the “Beacon” feature by Facebook in our recent past.

Thus, while there has always been a balance and some tension, the increasing direct intersection of these issues, resulting from the rise of consumer and commercial use of the Internet, has spawned a degree of heat over these issues, never before seen in history. The complexity has also created a good deal of emotion and rhetoric.
 

Click here to learn more.

• Email This
• Print
• Comments
• Trackbacks