Category Archives: Internet Law

Online Copyright Showdown: The Google MPAA Feud

Google MPAA feud explained
The Google v. MPAA feud is like Hatfields v. McCoys, 21st Century.

The fit-filled Google MPAA feud mirrors that of the Hatfields and McCoys. And thanks to the now infamous “Sony hack,” stakes have been raised in the Online Copyright War.

Concerned about information revealed in the leaked Sony emails, Google decided to sue the already beleaguered state of Mississippi. Huh? What does Mississippi have to do with the MPAA-Google beef? Keep reading.

Round 734 of the Google MPAA Feud: The “Get Tough On Online Copyright” Email

A pesky little email, from of the inbox of MPAA general counsel Steven Fabrizio, sparked Google’s lawsuit against Mississippi. In the email, Fabrizio mentions the studio’s “get tough” plan to strong arm Google on the issue of online piracy – or as the MPAA calls the search company, “Goliath.”

An excerpt, from the email, for your gawking pleasure:

“Creating an environment to potentially increase the impact of the AG effort requires additional resources devoted to investigation and analysis of Goliath. This investigation and analysis would give the AGs a greater understanding of the problems created by Goliath (ammunition/evidence against Goliath), and the technical solutions for those problems.”

Google MPAA Feud: The Kernel of Animosity

What is the kernel of animosity between Google and the MPAA?

The discord boils down to this: the movie studios and their lobbyists want tech companies to do everything in their power to curtail online copyright infringement (i.e., piracy).

Google executives, on the other hand, don’t think it’s the company’s responsibility to thwart piracy. Plus, there’s a sentiment in the tech community that the MPAA’s requests amount to censorship. In fact, a Google attorney mentioned the big “C”:

“One disappointing part of this story is what this all means for the MPAA itself, an organization founded in part ‘to promote and defend the First Amendment and artists’ right to free expression. Why, then, is it trying to secretly censor the Internet?”

MPAA Spin Masters

Skilled in the ways of Hollywood public relations, an MPAA spokesperson dodged Google’s “censorship” slight with a tried-and-tested, deflect-then-blame maneuver, countering:

“Google’s effort to position itself as a defender of free speech is shameful. Freedom of speech should never be used as a shield for unlawful activities and the Internet is not a licence to steal. We will seek the assistance of any and all government agencies, whether federal, state or local, to protect the rights of all involved in creative activities.”

The Google MPAA feud won’t end until studio staffers cipher a new revenue model. Until then, the online piracy tug-of-war will continue.

Contact an Online Copyright Lawyer

Do you have an online copyright legal issue? Are you ready to speak with an Internet lawyer? If yes, get in touch with Kelly / Warner Law. A pioneer in the field of Internet law, we’ve successfully managed hundreds of copyright challenges for businesses and entrepreneurs. To learn more about our firm, start here.

Sure, your online copyright issues may not be as dramatic as the Google MPAA feud, but wouldn’t it be nice to get it resolved? Let’s start fixing today.

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COPPA Update: Cleaner Language & Safe Harbor Programs

Summer 2014 COPPA Update
There are more Children’s Online Privacy Protection Act Updates. Do you know them?

The FTC has been busy this summer! In addition to releasing a few online marketing and privacy reports, the nation’s consumer watchdog also issued several updates to the current mac-daddy  of U.S. online privacy laws – the Children’s Online Privacy Protection Act (COPPA). The changes are mostly cosmetic and language-oriented – out with “legalese,” in with “plain English” type of adjustments.

Nevertheless, there are a few items worth reviewing.

Bolstered Liability Language Regarding Site & App Functionality

Requested, Promoted and Encouraged

The previous version of the Children’s Online Privacy Protection Act said the law applied to website operators and app developers who “requested” identifiable information from minors. In the latest version, “requested” has been expanded to “requested, promoted or encouraged.”

Everything Digital Falls Under COPPA Now

The last COPPA version specifically mentioned chat rooms and message boards as Internet-based platforms on which children could share personal information. Now, specific mentions of various types of online websites has been replaced with the broader “in identifiable form.”

Other Small COPPA Language Changes

  1. Changed e-mail to email;
  2. Included “instant messaging user identifiers, VOIP identifiers and video chat identifiers as “an identification that permits direct contact”;
  3. Added geolocation as a “persistent” identifier;
  4. Added the word transfer to section that addresses the exchange of PII between parties, used to be only sharing, selling and renting.

Clarified The Value of Hyperlinks In Determining Which Websites Fall Under COPPA and Which Do Not

The new COPPA documents states:

A website or online service shall not be deemed directed to children solely because it refers or links to a commercial website or online service directed to children by using information location tools, including a directory, index, reference, pointer, or hypertext link.

In other words, just because you link to a website that may fall under COPPA regulations doesn’t mean you ARE a site that falls under COPPA regulations.

Clarified That Websites That Deleting Children’s Info Lowers Liability

One of the main confusions about the Children’s Online Privacy Protection Act is whether or not sites that don’t use, share or sell collected data have to comply with it. The new version of the rule clarifies:

“An operator shall not be considered to have collected personal information under this paragraph if it takes reasonable measures to delete all or virtually all personal information from a child’s postings before they are made public, and also to delete such information from its records.”

Passive Tracking Illegal According To COPPA

The new Children’s Online Privacy Protection Act rules document clearly states that passive tracking of a child online – without following COPPA protocol – is illegal.

Cleared Up What Constitutes Website Functionality

COPPA rules have always allowed for the inconsequential collection of children’s’ data related to website maintenance and functionality mechanisms, like updates and certain types of security backups. The latest version of the rules expounds on allowable “administrative and functionality” collection circumstances. Perhaps most notably, the word “analyze” was added to this section – thereby allowing for more flexibility in terms of traffic aggregator plugins and apps used for business marketing and SEO.

Plainly Stated What Factors The Commission Looks For When Deciding If A Website Must Comply With COPPA Regulations

Previously, the FTC’s explanation of the factors considered when determining a website’s COPPA status was a confusing. The new document is much clearer.

The FTC looks at the following factors when deciding if a site is “directed towards children”:

  1. Subject matter;
  2. Visual content;
  3. Use of animated characters or child-oriented activities and incentives;
  4. Music and other audio content;
  5. Age of models;
  6. Presence of child celebrities or celebrities who appeal to children;
  7. Language; and
  8. “Competent and reliable empirical evidence regarding audience.”

Actual Knowledge Is The New COPPA Standard

Also, the new Children’s Online Privacy Protection Act states that a website, plugin or app will be deemed “directed to children” when the operator has “actual knowledge” that it is collecting personally identifiable information.

Slight Change of Rules Concerning Credit Card Parental Consent Authorization

If it wasn’t clear before, the FTC has now made it so: it is not sufficient to just gather credit card information without charging it as an acceptable parental consent mechanism. However, credit card information coupled with other identifying information may be sufficient.

App Store Account Coverage & Liability

The latest version of the COPPA rules says that developers can “rely” on any disclosures a given app store has if said app store includes legal coverage in their deal / contract with developers. Moreover, software companies can develop multi-platform COPPA parental consent mechanisms without assuming liability. (#score)

Data Retention Clarification

The latest version of the Children’s Online Privacy Protection Act states that any personally identifiable data collected from people aged 13 and younger can only be used “for only as long as is reasonable necessary to fulfill the purpose for which the information was collected.”

Safe Harbor Programs

The original COPPA rules allowed for legislators to develop a “safe harbor parental consent” program in which designated products could earn a “COPPA safe harbor” designation and using any of them would ensure compliance with the law.

Welp, the FTC has developed the program and ratified several products and services. So, new language was added to the COPPA rules to reflect the new “safe harbor” program and outline the “self-regulator” standards.

Speak With A COPPA Lawyer

If you need to learn more about the Children’s Online Privacy Protection Act, check out the related blog posts (in the right sidebar if you’re at a computer; below if you’re on a mobile device).

If you need a COPPA lawyer to review your website for

I Can’t Afford A Lawsuit. (Not So Fast! Maybe You Can.)

Can't afford a lawyer? Maybe you can.
Can’t afford a lawyer? Maybe you can.

I can’t afford a lawyer!

Maybe you can – with a little help from your “Internet friends.”

Take Roy Ngerng Yi Ling, for example. A Singaporean blogger, Ling landed on Prime Minister Lee Hsien Loong’s naughty-list for accusing the big wig of “criminal misappropriation of public fundsand is now facing a defamation lawsuit.

So, where does a cash-strapped blogger turn when staring down the barrel of a very high profile online defamation lawsuit? Why, to the Internet, of course! Specifically, to the nearest crowdfunding platform.

And it worked! Over 100 people contributed tens of thousands of dollars to Ling’s legal campaignbecause who can resist lending a few bucks to a keyboard critic being bullied by the most powerful politician in his country!?

Arizona Revenge Porn Bill Aims High, Deemed Flaccid by Law Expert

Let's talk about the ins-and-outs of revenge porn legalities.
Let’s talk about the ins-and-outs of revenge porn legalities.

In an attempt to quell revenge porn, The Arizona legislator has proposed a new law — House Bill 2515. The bipartisan bill aims to make illegal to “knowingly disclose, display, distribute, publish, advertise, or offer a photograph, videotape, film or digital recording or other reproduction of another person in a state of nudity or engaged in a sexual act without obtaining the written consent of the depicted person.”

Most people can agree that so-called revenge porn is an odious plague. As such, attempts to legally curtail the pastime – like Arizona’s HB 2515 – seem like a great idea. Moreover, since professional pornographers are required to keep proof of age and consent forms, people often wonder: “Why not make consent mandatory for all media involving nudity or sex acts?” Seems logical, right?

Maybe not.

Law professor Derek Bambauer points out a huge flaw in the proposal, citing the First Amendment. The bill does not make any provisions for videos, images or gifs that are newsworthy or of public interest. He points that anyone possessing media showing a politician engaging in an illicit sex act would be perfectly within their rights to distribute the material as newsworthy and an issue for public concern.

Bambauer does offer up a solution along with his criticism. He is a proponent of expanding copyright law to include so-called ‘intimate media,’ just as the state of California has already done. Doing so, he postulates, would simultaneously encourage the creation of intimate media by consenting adults and punish those who distribute it non-consensually.

Revenge Porn Lawyer

Revenge porn is serious. It has the power to ruin a person’s reputation. If you’re dealing with a revenge porn issue and want to explore your legal options, get in touch today. Our firm has handled many online harassment, defamation and revenge porn cases – and our track record is stellar.

Reach out today to begin the conversation.

COPPA Parental Consent: A Legalese-Free Legal Guide

COPPA parental consent rules
What are the COPPA parental consent rules? What is allowed and what is not?


  • Allowable COPPA parental consent methods
  • The FTC approved a new consent option for the Children’s Online Privacy Protection Act
  • New COPPA parental consent method is based on knowledge-based authentication
  • KBA method beat out new “social-graphing” authentication method

Attention companies covered under the Children’s Online Privacy Protection Act: The FTC approved a new COPPA parental consent method. The nation’s consumer watchdog agency green lit Imperium LLC’s dynamic knowledge-based authentication system, ChildGuardOnline.

Quickly, What Is COPPA?

The Children’s Online Privacy Protection Act is one of the few Internet privacy laws in the United States. In short, it established a set of governing rules for online data collection and digital storage of people aged 13 and younger. One of the main COPPA components is parental consent. In the simplest terms, websites and apps must obtain parental consent before collecting, using or storing kid’s information. What are acceptable COPPA parental consent methods? Keep reading.

The Old (& Still Usable) COPPA Parental Consent Methods

Until now, the only FTC-approved “verifiable parental consent” options were:

  • Providing a downloadable consent form that the parent could sign and return — via U.S. mail, fax, or electronic scan;
  • Requiring parents to use a credit card, debit card or online payment system that notifies the cardholder of every transaction;
  • Providing a toll-free number to call;
  • Providing a video confirmation service;
  • Checking government ID against an FTC-approved database. (This method can only be used if you immediately delete the parent’s information after verification.)

The New Rules For COPPA Parental Consent

In 2013, the FTC updated COPPA regulations. Part of the “upgrade” involved expanding the list of allowable parental consent methods. According to the new rules, companies can “apply” to get an FTC “COPPA-validation stamp of approval” for their digital authentication platforms. Here’s how it works:

  1. First, a company submits a proposal to the FTC explaining their digital authentication system and why it would be an effective COPPA parental consent-friendly platform.
  2. Then, the FTC publishes the proposal and invites the public to submit any feedback about the application.
  3. When the comment period ends, the FTC reviews the proposal and public feedback; then the agency decides if the applicant’s platform is an acceptable COPPA parental consent product. After review, findings and a decision are posted online.

 Has The FTC Rejected Any Other COPPA Parental Consent Applications?

Imperium is not the first company to apply for COPPA parental consent status. AssertID, another authentication company, also submitted their social media verification process for FTC review. Dubbed a “social-graph verification” scheme by the FTC, AssertID is a system wherein a parent’s social media “friend” verifies a parent’s identity. Unfortunately for AssertID, the commission rejected its proposal because it could not be “reasonably calculated” that the person giving consent was an actual parent or friend of the proper parental consent holder.

[Interesting business competition side note: AssertID’s proposal garnered 6 public responses – none of which were from Imperium. AssertID, however, did submit a comment for Imperium’s COPPA parental consent proposal and argued that their competitors program failed “to establish an adequate link between parent and child.” Additionally, AssertID argued, “The only link between the child and the parent is that implied by what is presumed to be the parent’s email address — there is no verification that this is in fact true. Although this weak implied link has been overlooked in the past, we feel that any new [consent] methods should be held to the requirement.”]

What Is Knowledge-Based Authentication?

We’ve become accustomed to online verification methods, like captchas. A typical verification method is called “knowledge-based authentication,” which requires respondents to either provide or verify personal information items in order to gain access to a private part of a website or application. There are two main types of knowledge-based authentication models, static KBAs and dynamic KBAs.

  • Static KBAs are based on “shared secrets”. When registering for an online service, a user will be asked to provide the answers to various security questions. In order to retrieve credentials, he or she is asked to provide answers to those questions. Oftentimes static KBA systems are used for online banking logins (i.e., what is your mother’s maiden name?).
  • Dynamic KBAs don’t require the user to have previous contact with a given site. Instead, the system automatically generates questions it culls in real time from public records. (Say What!? Yep.) Typically, the questions asked are considered “out of wallet” questions, meaning they aren’t queries someone could glean from either stealing or finding your wallet. Information is gathered from credit reports, marketing data and sometimes even social media.

What Stipulations Did the FTC Make About Acceptable COPPA parental consent options?

To thwart any budding Al Capones, the FTC demands that any new COPPA parental consent systems are “dynamic, multiple-choice questions with enough options to ensure that the chances of a child guessing the correct answers are low.” In addition, the commission will only consider systems wherein “the questions used are of sufficient difficulty that it would be difficult for a child in the household to figure out the answers.”   If you have a website that could be used by a child aged 13 or younger, you must comply with all COPPA consent rules.

COPPA Lawyer

If you have a website that could be used by a child aged 13 or younger, you must comply with all COPPA parental consent rules. It is no longer good enough to include a disclaimer like, “You must be older than 13 to use this site,” in your terms of service policy. Speak with a qualified COPPA lawyer to ensure compliance. The few hundred dollars it will cost for counsel is far better than the boat loads you may have to pay if the FTC comes a’knocking. A COPPA compliance audit is quick, painless and affordable. Get in touch today to get started on your COPPA legal compliance review.

Canadian Online Marketing Regulations FAQ

canadian internet lawsWhat is the Canadian Competition Bureau?

The Canadian Competition Bureau is an Independent law enforcement agency that monitors Canadian online marketing regulations. The Competition Bureau is responsible for the administration and enforcement of:

  1. Competition Act
  2. Consumer Packaging and Labeling Act
  3. Textile Labeling Act
  4. Precious Metals Marketing Act

What law governs Canadian online marketing regulations?

Canada’s Competition Act — commonly called C-34 — is the law governing business conduct in Canada including online marketing. C-34 covers both civil and criminal actions.

In general, what does C-34 say about false and misleading advertising online?

C-34 asserts that “any representation in any form, which is false or misleading in a material aspect, is prohibited.” It also states, “A representation is material if it could lead a person to a course of conduct that, on the basis the representation, he or she believes to be advantageous.”

What Canadian online marketing regulations does C-34 address?

The Competition Act addresses issues related to “commercial” websites and email. Though, depending on the circumstances, statements made in chat rooms, news groups and message boards can also fall under the act.

What actions does C-34 prohibit?

Among other things, C-34 prohibits:

  1. Deceptive telemarketing;
  2. Pyramid schemes;
  3. Advertising at bargain price a product not available in reasonable quantities;
  4. Selling a product at a price above the advertised price;
  5. Conducting contests, lotteries or games of chance or skill without making fair and adequate disclosure of, among other things, material facts that could affect winning potential.

Canada’s online marketing law also sets parameters for multilevel marketing plans.

What if I put a disclaimer about a product or service on another page of the website? Will that satisfy Canadian online marketing regulations?

C-34 addresses Internet user behavior. In doing so, the law requires that any disclosure information must appear in close proximity to the thing it is annotating. In the language of the Canadian government:

“Businesses should not assume that consumers read an entire website, just as they do not read every word on a printed page. Accordingly, information required to be communicated to consumers to ensure that a representation does not create a false or misleading impression should be presented in such a fashion to make it noticeable and likely to be read.”

Under Canadian online marketing regulations, who is responsible for an advertisement or website in violation of C-34?

According to Canadian law, “The person who has caused the [false or misleading] representation to be made” can be charged under C-34. While everyone involved in a marketing campaign may not be responsible for an ad violation, officials may consider the roles of:

  1. Designers
  2. Ad agencies
  3. Selling Company
  4. Media outlets
  5. Host/ISPs

Officials look at facts on a “case-by-case basis” when determining causation. Ultimately, courts pin the penalty on the entity that controlled the project. For example, if a company hires an advertising agency to create material, the contracting company has the ultimate say on “whether [or not] the campaign proceeds.” As such, the contracting company would be responsible. Hosts and ISPs would not be held responsible under similar circumstances.

What is the Canadian online marketing regulation “publisher’s defense” rule?

Section 74.07 of Canada’s Competition Act outlines the “publisher’s defense.” It states that anybody who “prints or publishes or otherwise disseminates a representation, including an advertisement, on behalf or another person in Canada” is not responsible for any marketing violations.  But there is a hitch. In order to successfully evoke the publisher’s defense, an entity must have its client’s address to ensure that the publisher is not simply “acting as a conduit” for the business.

C-34 has a section called “Applying the Competition Act On-Line.” What are the main points?

  1. General impression and literal meaning are both considered when reviewing an ad for legal action.
  2. Asterisks are a universally well-known signal of a disclaimer and should be used when possible.
  3. “A disclaimer can only qualify a representation; it cannot give or retract a false or misleading representation.”
  4. Ideally, a disclaimer should appear on the same screen and close to the statement it references.
  5. Writing “see below for eligibility restrictions” is an acceptable way to alert consumers of a related disclaimer; “See below for details” is an unacceptable disclaimer alert.
  6. Consistency with hyperlinks is important.
  7. Pop-ups and links to other pages can be used, but each case is examined individually. Basically, don’t be tricky.
  8. “Hyperlinking a single word or phrase in an advertisement may not be adequate.”
  9. If you use “attention grabbing tools” for disclaimers you can’t use the same tools in the ad, so as not to distract.
  10. Disclaimers must not use similar colors as foregrounds and backgrounds.
  11. Consider how people view and navigate a page and put disclaimers in appropriate places. When fitting, businesses should make clicking through to a disclaimer compulsory.

What disclosures are required according to Canadian online marketing regulations?

Canada’s competition law does not outline each and every disclosure that needs to be made. In some ways the Canadian government expects folks to practice common sense. But C-34 does highlight two types of disclosures that MUST be made:

  1. Section 55 addresses Multi-level Marketing – Multilevel marketing plans must include disclosures regarding earning potentials.
  2. Section 74.06 Contests – Entities must disclose “facts which materially affect the chance of winning.” Additionally, “Notice of a contest should not require an extra step, such as sending an email or placing a phone call.” According to the law, clicking on a hyperlink is not considered an “extra step.” “

Do businesses based in other countries have to adhere to Canadian online marketing regulations?

If a website can be accessed in Canada and/or Canadians can purchase the goods on a given website, then said website must adhere to Canadian law. C-34 states: “The [Competition] Bureau will assert Canadian jurisdiction over foreign entities to the fullest extent authorized by law whenever necessary to protect the Canadian market from false or misleading representations and deceptive marketing practices.”

UK Online Marketing Compliance Q&A

UK online marketing compliance summary
UK Online Marketing Compliance Rules.

“Since the Internet can’t decipher nation-state borders, must I adhere to Internet law standards in other countries?” It’s an oft-asked question and the answer is “yes”. To tweak a cliche: When in the UK, do as the British. And since national boundaries are non-existent online, your website is, technically, “in the UK,” which means you should take time to review UK online marketing compliance standards. To help you out, below is a list of frequently asked UK online marketing compliance questions — and answers.

What agency monitors UK online marketing compliance?

UK online marketing compliance standards are monitored by a self-regulatory organization called the Advertising Standards Authority (ASA). The group’s stated duty is to “Regulate the content of advertisements, sales promotions and direct marketing in the UK” by investigating “complaints made about ads, sales promotion or direct marketing.” Guy Parker has been the ASA’s chief executive since 2009.

Is the UK ASA a government agency?

No. The ASA cannot interpret or enforce legislation, but the group’s “Code of Advertising Practice” is reflective of UK legislation. However, the ASA is funded by an “advertising tax.”

If a claim is made in an advertisement, what level of proof is necessary to verify the claim’s accuracy?

Like in the United States, claims made in UK advertisements must be accurate and verifiable. UK online marketing compliance rules state that “before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation.”

Is “puffery” or exaggeration allowed under UK online marketing compliance rules?

Puffery and exaggeration are unacceptable according to UK online marketing compliance standards. Official rules state: “No marketing communication should mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise.”

Does the ASA have authority over online marketing compliance in the United Kingdom?

Since 2011, the ASA has held domain over the following UK online marketing compliance issues:

  1. Advertisements on websites;
  2. Paid-for ads on the Internet, including pop-ups, banners and sponsored links;
  3. Online sales promotion that appears in “British Web Space”;
  4. Email marketing.

Does the ASA have authority over marketing claims made in personal e-mail messages?

Private electronic correspondences do not fall under the purview of the UK Advertising Standards Authority. Though, some confusion exists as to whether or not the ASA can take action on SMS messages. It’s best to consult an attorney who can review your exact campaign and determine if it crosses a legal line.

Do any other agencies monitor aspects of UK online marketing compliance?

Yes, several. Most online advertisers, however, should concern themselves mainly with the Institute of Sales Promotion and the ASA. The Institute of Sales Promotion follows the same rules as the ASA and alerts the ASA when it believes a breach of sales promotion law has occurred. Examples of sales promotions include:

  1. By One Get One Free;
  2. 25% Extra For Free;
  3. Loyalty Rewards;
  4. Lotto, scratch cards, prize drawings.

If I want to make a UK online marketing compliance complaint to the ASA, will my identity be kept confidential?

When the ASA receives a grievance, it is required to keep the complainants’ personally identifiable information (PII) private, unless specifically given permission by the claimant. If, however, the complainant is a competitor of, or has a vested interest in, the subject of the complaint, the claimant must agree to be named. This is done to cut down on petty complaints.

What does the ASA do after it receives a complaint?

When the ASA receives a complaint, it immediately informs the entity being investigated. Then, industry experts investigate the claims and ask for substantiation of any questionable assertions in the marketing material. For example, if you are promoting a weight loss product and promise potential customers that they are “Guaranteed To Lose 20 Pounds in 3 Days!” then you’ll have to provide scientific proof to the ASA that your product consistently results in users losing 20 pounds in 3 days.

When the agency completes its investigation, a summary of findings and recommendations is compiled and sent to the advertiser and complainant. A copy of the report is then submitted to the ASA adjudication council, who votes on the issue and posts its decision online.

What if I do not agree with the ASA’s decision? Are appeals possible?

Appeals are possible. A formal request for one must be made within 21 days of the adjudication and can only be requested by the advertiser or complainant. Moreover, appeals can only be sought when:

  1. New evidence is available;
  2. One of the parties can elucidate a substantial flaw in ASA adjudication or investigation process during their case.

In the case of an appeal, an independent reviewer often enters the fray. The independent reviewer has final say on whether or not an appeal is accepted.

What actual power does the UK Advertising Standards Authority hold?

Though the ASA is not a part of the government, it does wield certain powers like:

  1. Bad publicity;
  2. Copy Control – The ASA can order a brand to have all ads reviewed by CAP (the Copy Advice Team) before publishing;
  3. CAP Compliance Team Intervention – The CAP compliance team administers ASA mandates. The government department performs various tasks to keep the system moving along smoothly. The CAP compliance team will call media owners and instruct them not to accept certain ads.
  4. Direct line to Broadcasting Licensing Authorities and the Office of Fair Trading – The Office of Fair Trading has the power to fine businesses and bring lawsuits. The department works closely with the ASA and comes down hard on repeat offenders if the ASA gives the signal. The Office of Fair Trading derives its authority under the 1998 Control of Misleading Advertising Regulations Act.

What are some notable UK marketing compliance cases?

  1. A 2004 ad for the Apple Power Mac G5 used the phrase “the world’s fastest personal computer.” Since it is a claim that can be proved empirically, the ASA launched an investigation.
  2. In 2008, the ASA banned an Apple iPhone ad that promised the phone could “access all of the Internet.” Since iPhone did not support Flash — and a host of other major plugins – the ASA forbade Apple from using the terminology.
  3. The ASA made the Israeli Tourism Board remove ads that contained a map of the country that included the West Bank, Gaza Strip and Golan Heights.
  4. L’Oreal was forced to stop running ads that included Penelope Cruz, Julia Roberts and Christy Turlington under the premise that the three women were not representative of actual results. Additionally, the ASA decided the ads contained misleading before and after pics.
  5. Brennan was banned from running an ad for the JB7 music player because the copy supposedly “glorified illegal downloading.” In its report, the ASA reasoned that Brennan “repeatedly made reference to the benefits of the product being able to copy music but did not make it clear that it was illegal to do so without permission of the copyright owner.” Another time Brennan was sanctioned for not making clear that a docking station didn’t come with the device.
  6. A local furniture store in Northampton couldn’t use the catch phrase, “Sofa King Low” because the line would likely cause “serious widespread offense.”

Do online marketers in the United States have to worry about the UK Advertising Standards Authority?

Yes! If your ads are accessible in “British web space” it’s under the purview of the ASA.

If you need to speak with a U.S. lawyer well-versed in UK online marketing compliance standards, contact us today.

Sextortion 101: A Legal Primer

Sextortion: revenge porn's equally odious cousin.
Sextortion: revenge porn’s equally odious cousin.

First, revenge porn hit the scene. Now, sextortion is also on the stroll. “Sextortion,” you ask? A hybrid crime of extortion and hacking, sextortionists use malware to gain control of web cams, and then take nude pictures and videos of victim’s without their knowledge or consent. After that, the perpetrator usually contacts the victim and demands money in exchange for not publishing the material. Unlike revenge porn, sextortion is illegal everywhere. If you get caught, you’re going to need superb lawyering to keep you out of jail.

Teenage Sextortionist Could Face Over A Year In Jail

Nineteen year old Jared James Abrahams of California recently found out the hard way that sextortion will land you in a heap of trouble with the law. After successfully using malware to commander the web cams of several women, including Miss Teen USA Cassidy Wolf, Abrahams amassed a library of unsolicited nudie media. He then contacted his victims and demanded “payment or else.” One of Abraham’s targets said he threatened to turn her “dream of being a model…into a port star.”

He Confessed Instead Of Going Through A Trial

But apparently Abrahams didn’t cover his tracks well enough and authorities smoked him out of his hole. Now he is facing time behind bars. And since Abrahams’ sextortion racket reached its tentacles into Ireland, Canada, Russia and Moldova, international suits may also arise – especially since EU online privacy laws are a lot more strict than U.S. online privacy laws.

Abrahams copped to the crime instead of enduring a trial. He “admitted to infecting people’s computers with malware” – a violation of the Computer Fraud and Abuse Act. He also conceded to “watching women change their clothes and using photographs against his victims.”

On March 19, 2014, Abrahams’ fate awaits him at his sentencing hearing. He could spend several years in the clink.

Sextortion Isn’t New, But Some Of The Methods Are

Analogue Sextortion

James Abrahams is not an anomaly. Sextortion is a prevalent pastime that has touched nearly every corner of the globe and every level of society. Though, it hasn’t always involved a digital component. For example:

  1. Several years ago, in Tanzania, authorities convicted a high school teacher who demanded sexual favors for grades.
  2. In 2010, a Canadian judge handed a government adjudicator an 18-month sentence for extorting sex from a refugee looking for asylum.
  3. Chinese Communist Party official Lei Zhengfu lost his job after a video called “Lei, the secretary who accepts sex bribes”went live on Sina Weibo, that country’s most popular social media site. And yes, as the title suggests, he was convicted for doling out government favors for sexual labors.

Digital Sextortion

In recent years, we’ve seen an increase in the number of hacking- and social media-related sextortion scandals. To illustrate:

  1. Celebrity phone hacker, Christopher Chaney, got 10 years in federal prison for hacking the phones of Mila Kunis, Christina Aguilera and Scarlett Johansson.
  2. A teenager in Wisconsin got a 15-year prison sentence for posing as a girl on Facebook, then using the account to convince boys to send him nude pics, which he then used to extort homosexual sex.

Judges Ban Together To Educate Law Enforcement and Lawmakers On Sextortion

Sextortion is so prevalent that the International Association of Women Judges (IAWJ), in conjunction with the Association of Women Judges in Bosnia and Herzegovina, the Philippine Women Judges Association, and the Tanzania Women Judges Association launched a three-year program called, “Stopping the Abuse of Power through Sexual Exploitation: Naming, Shaming, and Ending Sextortion.” The Netherlandian government was kind enough to foot the bill for the cross-border legal awareness project.

Revenge Porn Legal Primer: Laws & Legalities

Let's talk about the ins-and-outs of revenge porn legalities.
Let’s talk about the ins-and-outs of revenge porn legalities.

Welcome to the world of revenge porn – where scorned ex-lovers (and general jerks) publicly “sl*t shame” former paramours by posting prurient pictures online. To add opportunity to injury, a profitable revenge porn website industry has emerged. Not only do sites provide a platform for the offending material, but  they also charge revenge porn victims a hefty sum to remove media (think $5,000 in some cases). The worst part: paying the fee doesn’t guarantee it won’t pop up elsewhere once its removed from one site.

And believe it or not, revenge porn is perfectly legal in most jurisdictions. That said, victims are coming up with novel and effective ways to sue in civil court using various DMCA, defamation and false light invasion of privacy laws. Still, no nationwide law exists to combat revenge porn on a federal level. States, like Florida, have tried to pass revenge porn laws, but ultimately failed due to free speech concerns. However, some states are still trying to craft revenge porn laws that will protect peoples’ privacy without stomping on free speech toes.

State Revenge Porn Laws

Revenge porn reformers are largely seeking laws on the state level. Why? Because when it comes to Internet laws, the federal government is shockingly slow. Take, for example, federal politicians’ inability to pass a universal online privacy law – politicians have been trying for 15 years and have yet to get something passed.

California’s Ban on Revenge Porn

In October 2013, California became the second state to enact legislation banning revenge porn. The law specifically prohibits people from posting nude photos and videos of another person without their consent. Intent to cause distress or psychological harm must also be present to win a claim. Violating the new law is a misdemeanor that carries a penalty of $1,000 and up to six months in jail.

Maryland’s Anti-Revenge Porn Bill Proposition

In Maryland, state representative Jon Cardin introduced a revenge porn bill. Cardin cited a study in which 50 percent of respondents said they had sent nude or sexually explicit photos or videos of themselves to someone they knew. About 10 percent of those surveyed had received a threat from a former romantic partner to distribute the images publicly. Under Cardin’s law, if passed, distributing revenge porn would be a felony in Maryland punishable by a $25,000 fine and up to five years in prison.

New York’s Anti-Revenge Porn Law Proposal

New York is also in the process of drafting a revenge porn bill. The punishment for posting or distributing sexually explicit images of someone without their consent would be a fine of up to $30,000. It would also be considered a class A misdemeanor. However, the representatives sponsoring the bill, Joe Griffo and Phil Boyle, specifically want to expand the law to criminalize the distribution of images that were taken by the person in the photos or videos. This is a departure from California’s law, which only punishes people who distribute photos or videos they took themselves.

Shortcomings of Revenge Porn Laws

The American Civil Liberties Union originally opposed the California revenge porn law, not because the organization condones the practice, but because it has concerns that the law unintentionally chills free speech. When lawmakers narrowed the scope of the bill, however, the ACLU withdrew its objection. Under the new version, intent is a test element, and actions must have a verifiable adverse effect on the victim in order for a conviction.

Although passing the law was a positive step, some critics are concerned it doesn’t go far enough in securing justice for revenge porn victims. Why? Because establishing the intent to harm is difficult, and victims who wish to press charges may be required to submit psychiatric records to prove “emotional distress” – the act of which is arguably another invasion of privacy.

The California law only punishes people who distribute photos they, themselves, took of a person. While passing the law could help many people seek justice, the reality is that 80 percent of revenge porn cases involve media that the person in the images took themselves. So under California’s new law, these people still have no legal recourse.

Revenge porn is a fairly new phenomenon that encapsulates the theoretical difficulties associated with online privacy laws. Basically, if they want revenge porn laws, legislators will have to find a way that doesn’t encroach on free speech rights.

The Illinois Amazon Tax is Dead

internet taxes and amazon taxAttention affiliate marketers: it’s safe to head back to Illinois. The state’s Supreme Court overturned the controversial “Amazon tax”. The court decided the law that birthed the online sales tax was superseded by the federal Internet Tax Freedom Act, and was therefore unconstitutional.

So, let’s take a minute to review the Internet Tax Freedom Act and the Amazon tax. Then we’ll discuss the logic road the Illinois justices traveled to reach their decision – a decision that is sure to delight the affiliate marketing community.

Internet Tax Freedom Act

Lawmakers singed the Internet Tax Freedom Act into law on October 21, 1998. It’s meant to preserve the educational, commercial and informational potential of the Internet by banning Web taxes. Specifically, the ITFA prohibits “Internet-only” levies like bit, email and bandwidth taxes. It does not, however, exempt states from establishing an online sales tax.

Officials have updated the Internet Tax Freedom Act three times – mostly for small definition changes and provision extensions. The last amendment extended the law till Nov. 1, 2014, at which time politicians will decide whether or not to keep it as is or change it.

Proponents of the ITFA argue the law is necessary for innovation, as burdening Internet development with taxes will hurt the potential benefits of the Web. Opponents of the ITFA say that all it does is unnecessarily cut a potentially valuable revenue stream for states.

Some States Are Not Subject To The ITFA

Before the ITFA went into effect, 10 states already had Internet taxes on the books. As such, the ITFA includes a grandfather clause which allows Internet taxes in those states. The ITFA immune states and district are CT, IA, NM, ND, SD, OH, SC, TN, TX, WI and DC.

Illinois Repealed The Amazon Tax

In 2011, Illinois passed the Main Street Fairness Act, which imposed an online sales tax for Internet retailers, with annual Illinois-generated revenues of over $10,000, regardless of whether or not the retailer had a physical presence in the state. Dubbed the “Amazon tax,” Illinois’ Main Street Fairness Act did not go over well, and large online retailers like Amazon and Overstock severed ties with Illinois affiliates to avoid the cost.

In fact, the new tax was so unpopular that the Los Angeles-based Performance Marketing Association sued the Illinois Department of Revenue, arguing the Amazon tax was unconstitutional and discriminated against “Internet-based performance marketers.” According to PMA’s research, after the MSFA passed, 1/3 of the state’s 9,000 affiliate marketers, who generated over $700 million in advertising revenue in 2010, left Illinois in 2011, and the other 2/3 either downsized or went belly up.

In a six-to-one ruling, the Illinois Supreme Court sided with the PMA, and by extension Illinois’ affiliates. Ultimately, the state’s highest court reasoned that the Internet Tax Freedom Act superseded the Main Street Fairness Act. Even though the ITFA does allow for online sales’ taxes, the bench decided that affiliate links were equivalent to radio and newspaper promotional codes, and since out-of-state retailers didn’t have to pay a tax on those sales, placing a tax burden on Internet affiliates would be “discriminatory.” The one dissenting judge argued that the MSFA “does not impose any new taxes or increase any existing taxes.”

The Future of Online Taxes

On November 1, 2014 the Internet Tax Freedom Act will expire. Some states, like Arizona, are already making moves to prepare for a possible change in law. It will be interesting to see what happens with the ITFA in 2014. Politicians eager to close the deficit gap may see Internet taxes as a juicy revenue pork chop just waiting to be devoured.