Perils of Affiliate Marketing - PMA 2008
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Perils of Affiliate Marketing - PMA 2008
- 1. Perils of Affiliate Marketing Andrew Lustigman, Esq. Partner Bennet Kelley, Esq. Founder Rudy Smith CEO November 21, 2008
- 8. Types of Affiliate Sites (con’t) Search affiliates -utilize pay per click search engines to promote the advertisers' offers Registration path or co-registration affiliates who include offers from other merchants during the registration process on their own website Weblogs and website syndication feeds
- 12. Conversions
- 17. Spaminess
- 18. CAN-SPAM Principal Requirements From line must identify initiator Subject line must not be deceptive. Adult Messages must provide notice. Postal Address for Advertiser Requires Working Opt-Out Mechanism for Advertiser UCE must be identified as “advertisement ”
- 24. Forward to a Friend Rule
- 26. CAN-SPAM Wireless Rules Toe-may-to Ta-mah-to Commercial Email Mobile Service Messages Recipient Consent No Express Consent Required Do Not Send Registry No Wireless Domains List Enforcement FTC FCC
- 29. The High Cost of Free*
- 49. Questions? Andrew Lustigman, Esq. Partner [email_address] Bennet Kelley, Esq. Founder [email_address] Rudy Smith CEO [email_address]
Notes de l'éditeur
- WHILE THE ACT AND THE FTC DETAIL WHAT CONSTITUTES WHEN AN EMAIL TRIGGERS THE PRIMARY PURPOSE RULE, THE EASIEST THING TO DO IS TO ASSUME CAN-SPAM APPLIES BECAUSE ITS REQUIREMENTS ARE SIMPLE DON’T BE DECEPTIVE IN YOUR SUBJECT LINES OR HEADERS HAVE A WORKING OPT-OUT METHOD IRONICALLY ENOUGH, THE ADVERTISER IS REQUIRED TO HAVE AN OPT-OUT LINK, BUT NOT THE MARKETER – ALTHOUGH THIS IS COMMON PRACTICE TO INCLUDE BOTH.
- THE FTC CONTINUED TO SUFFER SETBACKS ON ITS VIEW OF STRICT LIABILITY FOR SENDERS INSTEAD – QUITE A PERMISSIVE STANDARD HAS DEVELOPED – SINCE THERE IS NO DUTY TO INVESTIGATE.
- Hypertouch v. Kennedy-Western University S trict anti-spam policies and policing of affiliates defeated allegation of intent. ASIS Internet Services v. Opt-In Global, Inc. No duty to investigate
- THIS PROPSAL EVOLVED AS IT WAS FORMULATED – BUT IT STEMS FROM THE FACT THAT AS WRITTEN – EMAIL AD NEWSLETTERS WOULD REQUIRE ALL ADVIERTISERS TO COMPLY THE SOLUTION – DESIGNATED SENDER. BUT IT HAS TO BE A SENDER – WHICH IS THE ADVERTISER.
- BASIC RULE FOR OPT-OUTS YOU CAN GIVE A CHOICE, BUT NOT CONDITIONS OPT-OUT IS FOREVER
- THIS IS A FACT BASED DETERMINATION IF YOU MERELY PERMIT/ENCOURAGE FORWARDING – NOT CAN-SPAM ISSUE IF YOU DO ANYTHING MORE – YOU’RE A SENDER
- A CRITICAL ELEMENT OF CAN-SPAM WAS THAT IT HAD NO PRIVATE RIGHT OF ACTION . . . OR DID IT BACKDOOR ATTEMPTS B SPAMIGATORS TO CLAIM THEY ARE IASP HAVE BEEN SHUT DOWN FOR LACK OF SUBSTANTIAL HARM
- AN OVERLOOKED, BUT NOT INCONSEQUENTIAL FACT, IS THAT THE FCC ALSO HAS JURISDICTION OVER CAN-SPAM. THE ONLY OPT-IN REQUIREMENT UNDER CAN-SPAM IS FOR WIRELESS EMAIL FCC REGS SPECIFY HOW CONSENT IS TO BE OBTAINED – IT REQUIRES SPECIFIC DISCLOSURES AND CANNOT BE LUMPED IN WITH OTHER CONSENT LANGUAGE.
- ONLINE GAMBLING REMAINS ILLEGAL AND ADVERTISING ONLINE GAMBLING – EVEN QUASI GAMBLING SITES CAN SUBJECT YOU TO ACCESSORY LIABILTY NO SIGNS OF CHANGE IN CONGRESS – ALTHOUGH LEGALIZATION WOULD NET $40 BILLION IN TAX REVENUE OVER TEN YEARS THERE IS LIBERALIZATION IN EUROPE, BUT IT IS HIGHLY REGULATED, SO LOOK BEFORE YOU LEAP
- WHAT COULD FORCE A CHANGE ARE DEVELOPMENTS AT THE WTO. IP RIGHTS HOLDERS MAY NOT BE VERY PLEASED IF ANTIGUA BECOMES THE PIRATE OF THE CARIBBEAN A MULTI-BILLION DOLLAR BATTLE WITH THE EU OVER ONLINE GAMBLING COULD FORCE THE US TO CHANGE ITS POSITION. BUT UNTIL THEN WE CAN THINK OF WHAT ELSE ANTIGUA HAS TO OFFER
- FREE CAN BE VERY VERY EXPENSIVE THIS REPRESENTS THE $3.5 MILLION AT&T PAID TO THE FLORIDA AG
- THE STATE OF FLORIDA HAS BEEN ACTIVE IN CRACKING DOWN ON FREE RINGTONE OFFRS.
- SETTING CLEAR STANDARDS FOR EACH ELEMENT OF THE REQUIRED DISCLOSURES
- EVEN ADDRESSING THE LEVEL OF COLOR CONTRAST REQUIRED
- THE FTC HAS SET CLEAR STANDARDS FOR FREE OFFERS IN ITS CONSENT DECREES THAT ADDRESS COLOR, FONT, SIZE AND DISCLOSURE I ASKED THE FTC WHY DIDN’T THEY SUGGEST SELF REGULATORY GUIDELINES IN THIS AREA – IT MIGHT HAVE HELPED GIVEN