Five ways your digital marketing might be missing the legal mark

March 14, 2018

This piece is presented by Click Rain.

By Ashley G. Blake, a cyber law attorney at Davenport, Evans, Hurwitz & Smith LLP

Online marketing is growing in importance for many businesses in Sioux Falls and around the country. However, your digital marketing may be putting your company at legal risk. Here are five issues to look out for and discuss with a cyber law attorney to help protect your business:

  • You don’t have terms on your website. Website terms and conditions provide an opportunity for business owners to get out in front of potential liability for their websites and to minimize risk. In many ways, website terms function like a prenuptial agreement — they guide what happens when something goes wrong in your interactions with your website user. Businesses should have well-drafted and robust terms on their website to help protect their website content, set governing law and venue, protect them from future liability, and limit and define permissible and impermissible website use, among other provisions. Most digital marketing drives users back to your company’s website, so your website should be legally equipped for such traffic. Website terms and conditions are the most basic legal tool that every business doing digital marketing should have in its arsenal.
  • You don’t have a privacy policy on your website. Several states require businesses interacting with their residents to have written privacy policies, so unless you limit user access from residents of states requiring privacy policies, your website must include a privacy policy. If that’s not reason enough to adopt a privacy policy, if you are doing digital marketing with third-party vendors such as Google and Facebook, they also require a privacy policy on your website. Your company’s privacy policy should be tailored to your individual website, the data you are collecting and how that data is being used. Digital marketing also has moved beyond just cookies, so if you have a privacy policy and are using new digital marketing tools such as remarketing, retargeting or a CRM system, it’s time to either draft a new privacy policy or bring your current version up to date.
  • Your sweepstakes is an illegal lottery or is lacking attorney-drafted official rules. Businesses should be very careful to ensure any offered sweepstakes is compliant with the laws of the states in which it is offered and that it is not considered an illegal lottery. Without well-drafted official rules, businesses may be taking on substantial liability with their sweepstakes. An attorney can help ensure that you are appropriately limiting who can participate in your sweepstakes — for example, some states have licensing and bond requirements if you offer your sweepstakes to residents of those states — and can help ensure that your sweepstakes rules adequately protect your business from future liability. For any business running a sweepstakes, a well-drafted set of rules is vital to help minimize your legal risk.
  • You aren’t following CAN-SPAM requirements for your commercial email messages. Email marketing is one of the most used tools in digital marketing and can be an immensely effective tool for businesses, but it does come with some specific legal risks. The Controlling the Assault of Non-Solicited Pornography and Marketing Act, or CAN-SPAM, of 2003 limits sending commercial emails unless the requirements of CAN-SPAM are met. Even if users opt-in to receive emails, each of CAN-SPAM’s requirements must still be met, with the exception of labeling the email as an advertisement. This means businesses must still comply with opt-out or unsubscribe options, subject and heading requirements, and contact information requirements. Businesses should be watchful for email addresses that may have made it onto their email list without valid consent. Violations of CAN-SPAM can cost your business over $40,000 per violation for each email that fails to meet CAN-SPAM requirements. A cyber law attorney can help you create proper CAN-SPAM disclosures for your commercial emails to ensure that you meet all of CAN-SPAM’s requirements, even for cases where consent was not validly obtained from the consumer to be on your company’s email list.  
  • You aren’t providing the proper TCPA disclosures on your website. One area that poses a particularly large risk for businesses is text messaging or calling customers on their mobile phones using an automatic dialing system or prerecorded message. The Telephone Consumer Protection Act, or TCPA, limits the ability of businesses to text or call a consumer’s mobile phone using an automatic dialing system or prerecorded message, unless prior express consent has been obtained from that consumer. If the text or call involves an advertisement or solicitation, consumer consent must be in writing. Thus, if you are obtaining customers’ telephone numbers through your website and intend to text message or call a customer’s mobile phone using an autodialer or prerecorded message, you should be making appropriate TCPA disclosures on your website and in your website’s terms and conditions. TCPA violations are common, as are class-action cases in this area, and the penalties, fees and judgments are substantial. With some foresight and assistance from a cyber law attorney who can draft appropriate disclosures to protect your business from TCPA violations, you can minimize the risk of finding yourself part of a class-action lawsuit because of a mobile phone marketing campaign.

To learn more about mitigating the legal risk of digital marketing, click here. 

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Five ways your digital marketing might be missing the legal mark

If you have a website or use social media in your business, make sure you aren’t putting your company at legal risk.

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