Compliance. It’s More than a Buzz Word

Moderator

Steven Richter, President & General Counsel,

Media Breakaway, LLC

Panelists

Sanj Goyle, Sr. Director of Lead Generation, Yahoo, Inc.

Carolyn Hodge, VP of Communications, TRUSTe

Gary Kibel, Partner, Davis & Gilbert LLP

Our Goal:100% Compliance

Be Proactive• Prepare (To Be Compliant)

– Keep current regarding compliance statutes, case law, regulations & industry standards and support industry wide compliance practices

• Prevent (Being Non-Compliant)– Thorough Affiliate & Advertiser application process

• Protect (Your Integrity) – Identify compliance issues and take appropriate action

Compliance. It’s More than a Buzz Word

Gary Kibel

Partner

Davis & Gilbert, LLP

Can Spam – Enforcement Actions• FTC v. Cleverlink

(July 2006)– Defendant’s “date lonely wives” spam violated nearly

every provision of Can Spam:• Contained misleading headers and deceptive subject

lines• Failed to allow consumers to opt-out• Failed to contain a physical address• Did not label the content “SEXUALLY-EXPLICIT”

– Defendants order to pay $2,635,000 (reduced to $303,000 based upon available assets)

Prepare

Defendant ordered to sell 2001 Dodge Viper

Prepare

Affiliate Monitoring Program– Stipulated Affiliate Monitoring Program

• Obtain Affiliate’s name, physical address, tel #, email, DOB & bank account info.

• Provide each Affiliate a copy of the FTC-Cleverlink Order.• Obtain from each Affiliate a written agreement to comply with the FTC Order

and CAN SPAM.• Put email address on first page consumer visits for reporting violations.• Comply with all industry standards.• Investigate all consumer complaints.• Require consumers to indicate how procured (i.e., email, banner).• Immediately terminate any Affiliate who violates Cleverlink’s contract, CAN

SPAM or the FTC Order.• Notify all Affiliates that violations will result in immediate termination and

forfeiture of all monies earned.• Provide links to Cleverlink’s commercial email policy.• Require Affiliates to maintain records to prove compliance.

Prepare

Affiliate Liability? - NO• FTC v. Impulse Media

(May 2008)

– Defendant’s affiliate program terms prohibited email.– Defendant provided affiliates with creative materials.– Court/Jury held that Impulse Media did not “initiate” the

spam.• “The Court rejects plaintiff’s effort to characterize the CAN-

SPAM Act as a strict liability statute……the plain language of the Act requires that plaintiff prove that defendant intentionally paid or induced another party to undertake the specific act of sending a commercial email.”

Prepare

Enforceability Concerns

• Greer v. 1-800 Flowers.Com Inc. (Texas – 2007)– Facts– Internal Procedures– Website Privacy Policy

Prepare

Compliance. It’s More than a Buzz Word

Sanj Goyle

Sr. Director of Lead Generation

Yahoo! Inc.

Yahoo! Mail Feedback Loops

The current Yahoo! Mail feedback loop program is temporarily shut down.

An improved, streamlined and AUTOMATED system will be launching by the end of September.

How does Yahoo! Mail help senders minimize complaint rates?

http://help.yahoo.com/l/us/yahoo/mail/postmaster/

Prepare

Yahoo! Mail White Lists

How does a sender get on Yahoo! Mail’s White List?

Senders undergo a subjective evaluation by Yahoo!’s Mail team.

Two major factors are considered:

1.Quantity of mail being sent from servers2.Number of complaints received by users

Yahoo! Mail protects its users against unwanted mail, regardless if they have opted-in or not. The SENDER must ensure that their opt-ins are

properly disclosed and meaningful.

Prepare

Guidelines and Best Practiceshttp://help.yahoo.com/l/us/yahoo/mail/postmaster/

http://www.maawg.org/about/MAAWG_Sender_BCP

Prepare

Compliance. It’s More than a Buzz Word

Carolyn Hodge

VP of Communications

TRUSTe

TRUSTe: Self Regulation and Certification

• Certification to standards, monitoring and enforcement for publishers/ 2,000 consumer websites and their service providers and ~24 software publishers (ComScore, Conduit, WeatherBug, Coupons)

• Get to know the rules of the road for consumer data collection and privacy (TRUSTe, NAI, IAB, OPA)

• For lead collection the seal of approval can lift registrations by 20+%, for consumer brands collecting data 3-5% increase

Prepare

TRUSTe Best Practices• DO know where your brand is being distributed and promoted.• DO implement security and audit measures to verify correct notices

are presented to consumers by affiliates and distribution partners. • DO implement security and audit measures to verify that consent is

obtained from the consumer prior download or engagement.• DO have a contract with your distribution and promotion partners

that binds them to good practices.• DON'T assume a contract with your distribution partners or

affiliates fully protects you. It's still your responsibility to monitor their practices for compliance.

• Develop a monitoring and alert scheme for monitoring affiliates or distributors

• Enforce similar monitoring contractually on affiliates, distributors, and sub-affiliates

Prepare

Compliance & Enforcement Trends• Increasing consumer privacy complaints • Majority of serious compliance issues for websites

result from partner or affiliate slip–ups• TDP Monitors 3 major affiliate networks for 24

companies • For software distributors all serious enforcement

actions were rogue distribution or low distribution controls– Miva A lot Toolbar, Rabio SearchHancer and ComScore Relevant

Knowledge

Prepare

Prevent

Ringtone

Checklist Pending Affiliate

Checklist

Ad Checklist

Ringtones Marketing Guidelines

ProtectTermination Notice

Compliance Review

Affiliate Agreement

Q&A