2013 05-29 Advertising and Marketing Law Presentation

Advertising & Marketing Law

#amlaw13

I’d like to share a personal story*

* @pauljacobson

I was careless and I knew better

On the 5th of February 2013, my life changed

Suddenly my indulgences became hazards

What does this have to do with social media and the law?

Without thought to consequences ... even though you

know better

You never think you will overdo itor things will go wrong

Copyright

Where is your team getting its content?

Did they obtain permission?

How are you licensing your content?

This is Trey Ratcliff

http://www.flickr.com/photos/scobleizer/5916015734/

http://www.flickr.com/photos/stuckincustoms/8837173497/

Privacy on the social Web

You know POPI is coming

“consent” means any voluntary, specific and informed expression of will in terms of which permission is given for the processing of personal information"

“processing” means any operation or activity or any set of operations, whether or not by automatic means, concerning personal information, including—(a) the collection, receipt, recording, organisation, collation, storage, updating or

modification, retrieval, alteration, consultation or use;(b) dissemination by means of transmission, distribution or making available in any other

form; or(c) merging, linking, as well as restriction, degradation, erasure or destruction of

information;

‘‘personal information’’ means information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to—(a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;(b) information relating to the education or the medical, financial, criminal or employment history of the person;(c) any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the person;(d) the biometric information of the person;(e) the personal opinions, views or preferences of the person;(f) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;(g) the views or opinions of another individual about the person; and(h) the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person;

Expression and Reputation

Perceptions are important

The social Web amplifies

“Chris Cairns removed from the IPL auction list due to his past record in match fixing. This was done by the

Governing Council today”

Lalit Modi on Twitter, 5 January 2010(tweet has been removed)

The original Tweet was received by only a limited number of followers within England and Wales. One expert calculated that they numbered 95, the other 35. The parties have sensibly agreed that I should take the figure of 65. The second publication, to Cricinfo was on their website only for period of hours. The expert's figures for numbers of readers of this publication are respectively 450 and 1500. I shall proceed on the basis that about 1000 people read the second publication, which I have found carried the less grave but nonetheless serious meaning that there were strong grounds for suspecting that the claimant had been involved in match fixing. In respect of the second publication I also bear in mind that Cricinfo have settled with the Claimant, paying him £7,000 damages and a further sum for costs.

Modi was ordered to pay £90 000 in damages

Modi was also ordered to pay £400 000 in legal costs

The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words . . . to convey a meaning defamatory of the plaintiff. . . . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’

Judge Willis quoting Argus Printing and Publishing Co Ltd v Esselen’s Estate in the Joburg High Court case of H v W

Something else to bear in mind

It gets worse ...

2003

Collection of 12 000 Californian coastal properties

Government sanctioned and commissioned project

She sued for $50 million

Went public and over 420 000 people viewed the photo online

“If you try to stick up for what you have a legal right to do, and you're somewhat worse off because of it, that's an interesting concept.”

Michael Avery, Toshiba’s attorney, commenting on the 2007 Digg revolt

There is more and it gets worse

The result was astonishing

Do you have a plan in place to anticipate

these risks?

Back to my diabetes

Do you want your business on chronic

medication administered by

lawyers?

Or will you start running?

... and monitor your legal exposure regularly?

Thank you!*

* Questions to follow ...

Questions

Can personal information be supplied to 3rd parties?

Can you collect children’s personal information using incentives to persuade them to disclose

their personal information?

What is POPI’s impact on promotional competitions and what are promoters’

obligations?

What are the rules governing prize giveaways on Facebook? What is acceptable?

Viral marketing defamation risks?

Possible retrospective implications for pre-POPI personal information processing

Must sources be included in video representations?

Any more questions?

Paul Jacobson

paul@webtechlaw.com

@webtechlaw or +Web•Tech•Law

webtechlaw.com