Discussing legal, privacy and compliance issues for regulated industries in search and social media.

1. Search in Regulated Industries
Emerging Legal Issues Related to Search Engine Optimization & Privacy
Aaron I. Messing, Esq., CIPP
OlenderFeldman LLP
amessing@olenderfeldman.com
@amess | @privacyinfo
New York | March 19–23

2. New York | March 19–23, 2012 | #sesny
Emerging Trends Related to SEO & Privacy
• Increasingly, consumers are using a combination of search and social media
to make purchasing decisions.
• The use of social media, targeted behavioral advertising and search engine
optimization as a driver of consumer preference will only increase.
• Businesses need to engage consumers with the right message, using the
right medium, at the right time – without being deceptive or obtrusive.
• Regulated industries cannot afford to ignore these trends. Unfortunately,
although regulation is pervasive, regulatory guidance has been lacking,
especially in the social media, disclosures and “Big Data” context.
OlenderFeldman LLP @privacyinfo

3. New York | March 19–23, 2012 | #sesny
Search Engine Optimization (SEO)
• SEO Competition. Top search spots are extremely competitive.
• Backlinks and Content Analysis. Link analysis is one of the most important
ways that search engines determine the relevancy of a web page.
• Content Creation. SEO companies use employees, freelancers and bloggers
to generate content which can be problematic for regulated industries.
• Optimizing or Deceiving? Can “optimizing” a website for search engines be
considered legally deceptive and misleading?
OlenderFeldman LLP @privacyinfo

4. New York | March 19–23, 2012 | #sesny
Federal Trade Commission (FTC) Enforcement
• Protection Against Unfair and Deceptive Trade Practices. Section 5 of the
Federal Trade Commission Act (15 U.S.C. 45) grants the FTC power to
investigate and prevent deceptive trade practices.
• Paid Links and Reviews Attracting Regulatory Attention. FTC rules require
full disclosure when there is a “material connection” between a merchant
and someone promoting its product.
• FTC Requires Mandatory Disclosures But Does Not Specify How Disclosure
Should be Made. “Disclosures can be made in different ways, whether you
make it outside the text but in proximity to the blog, or incorporate it in the
blog discussion – those are issues that bloggers will have discretion about.”
Assistant Director Richard Cleland, 10/7/09
• Forthcoming Guidance: The FTC will host a workshop entitled “Advertising
Disclosures in Online and Mobile Media” on May 30, 2012 to consider the
need for new guidance. OlenderFeldman LLP @privacyinfo

5. New York | March 19–23, 2012 | #sesny
SEO Best Practices for Regulated Industries
• Ask and Tell. Clients need to ask what their SEO company is doing and SEOs
companies need to tell them.
• Review Content, Keywords, Title Pages and META Descriptions. The use of
targeted keywords can walk the line between “optimization” and unfair and
deceptive trade practices.
• Substantiate Your Claims. Make sure claims can be substantiated and are
not deceptive or unfair.
• Build content around neutral search terms and build SEO through goodwill.
Draw traffic with unbranded informational materials that use search terms
you want to optimize for.
OlenderFeldman LLP @privacyinfo

6. New York | March 19–23, 2012 | #sesny
SEO Best Practices for Regulated Industries
• Create Internal and External Facing Policies. Create policies for both
employees and third parties regarding acceptable content and enforce
them.
• Create a Disclosure Policy. If you are paying someone to write about a
product/service, you need to disclose that information.
• Build in Compliance. Smart SEO companies provide various forms of
disclosure in both text and image form to remain compliant while not
tipping off the search engines.
• Incorporate Contractual Safeguards in Agreements. Obtain warranties and
representations as to what activities are permitted and what are not.
Obtain indemnification where possible.
OlenderFeldman LLP @privacyinfo

7. New York | March 19–23, 2012 | #sesny
Consumer Privacy & “Big Data”
• The Age of Big Data. Tracking technologies observe web users’ interests
and conversions to build online behavior profiles.
• Behavioral advertising is effective. Statistics show behavioral advertising
can increase the click through rate and bring in more revenue than of non-
targeted advertising.
• Ubiquitous Tracking. New analytic tools and algorithms make it possible to
combine “anonymous” information to create detailed profiles that can be
associated with a particular computer or person.
• Consumer Concern. Consumers are increasingly concerned with tracking
and uncomfortable with behavioral advertising.
OlenderFeldman LLP @privacyinfo

8. New York | March 19–23, 2012 | #sesny
Mo’ Data, Mo’ Problems
• Regulation is Coming in the form of legislation and “voluntary” compliance.
• Be Careful What You Collect. Collect only the information you need.
• Beware the Backlash from retargeting campaigns, the collection of
personal information and the use of 3rd party cookies.
OlenderFeldman LLP @privacyinfo

9. New York | March 19–23, 2012 | #sesny
Privacy Best Practices
• Disclose and Communicate: Disclosure is important in privacy policy and
terms of service, but should also be communicated in context.
• Develop Policies for data collection, retention and deletion.
• Practice What You Preach. Make sure your policies accurately reflect your
practices.
• Prepare for Breach. Have a response ready in case of emergency.
• Companies lacking a robust compliance program governing collection,
protection and use of personal information may face significant risk of a
data breach or legal violation, resulting litigation, and a hit to their bottom
lines.
OlenderFeldman LLP @privacyinfo