As we reported last year, there’s a new entrant into the “holiday days” tradition – #GivingTuesday. The brainchild of New York’s 92nd Street Y and the United Nations Foundation, #GivingTuesday is a movement to create a national day of giving to kick off the giving season and is celebrated the Tuesday after Thanksgiving.
As we interact online, we leave a breadcrumb trail of data – both personally identifiable and anonymized. This information can be pulled straight from data shared – name, age, or address – or can be extracted from browsing habits and usage patterns. So what restraints are put in place to stop unchecked collection and use of this data?
One touchstone used by authorities in determining data-related policies and definitions is the concept of “unfairness.” This term is used prominently in the FTC Act and is part of the fabric of consumer protection in the United States. In addition, unfairness is being used in policymaking and enforcement efforts to determine what types of data collection, storage or use may be impermissible because conducted or structured in such a way that do not adequately protect consumers from harm.Continue Reading Brand Activation Association Marketing Law Conference – Data and Unfairness
This week, leading lawyers, legislatures and marketers attended the 35th Annual Brand Activation Association (BAA) Marketing Law Conference in Chicago. At BAA I gave a presentation titled, “Journey to the Center of Advertising Law: Knowledge, Insights, and Practical Tips on The Most Important 2013 Advertising Developments.” Over the next few days, I will share with you three video clips from my presentation. Let’s dive into the first one…
How do we determine “reasonable consumer” behavior? This is an increasingly important question in a world where the consumer population comprises people with differing views, perspectives, education levels, and experiences. The “reasonable consumer” is crucial in advertising law: this person interprets advertising, determines what claims are actually being made, decides whether there are any implied claims, decides whether a statement is “puffery,” and helps courts decide whether advertising is ultimately misleading or deceptive.Continue Reading Brand Activation Association Marketing Law Conference – The Reasonable Consumer
The FCC has changed its rules to require “prior express written consent” in order to auto-send commercial calls or texts. Failure to comply can open violators up to private lawsuits, and to damages awards of up to $1,500 per violation. So what should be done to avoid pricey violations?
First, there needs to be written
Madison Avenue is a hotbed for creativity and innovation. The evolving nature of the digital world means new opportunities and platforms, and also means that agencies are constantly pushing the envelope to meet new client needs, develop new campaigns, and rise to new challenges from global competition, the economy, and the like. The constant change that agencies are moving with is what has propelled the creative industry forward all these years.
I sat down with Peter Krivkovich, Chairman and CEO of integrated marketing communications agency Cramer-Krasselt, to discuss the industry and the state of today’s agency.
Integration is a highly over-claimed word. The question is not whether everyone has access to those various disciplines – the better question is how does everyone have access to them. If they are run as separate profit centers, separate profit and loss statements (P&L) with the people heading them up having separate budgets or separate revenue-based bonuses, then it can’t possibly result in sustained unbiased contributions to a marketing solution. The former is more akin to the old corporate world conglomerates. And they didn’t work out that well – few synergies beyond a revenue pile-on. Integration plays into our work from inception. Because we are outcome – rather than output – driven, because we have no profit-center walls between people, we can have a diverse group of thinkers around the table minute one, with no discipline politics agenda biasing a solution. It’s never about simply checking boxes – it’s all about connection points that will drive results and that require multiple disciplines in constant motion and in constant sync.
Data has certainly made us smarter about the people with whom we need to connect. If we’re smarter about them we can get closer to them and be more relevant to them. And, of course, data – big or small – helps us optimize our approach in ways we never could before. We’re much more real-time now. It’s an exciting development, and really just beginning. But like integration, it’s also a terribly over-used word – and more importantly, data is a misused one. Getting consumer information is no longer difficult, it’s prolific. Knowing which data leads to genuine actionable insights is. That’s where we concentrate our talent. Not on data compilation and output, but on what specifically will lead to an outcome for what’s next.
Consumer protection in our digital age is becoming an ever more complex challenge, with technology constantly evolving and always “newer” new media emerging at lightning speeds. In recent years, online behavioral advertising has taken center stage as one of today’s most hotly-debated marketing practices. There seems to be a consensus amongst regulators that the industry, through self-regulation, should take on the challenge of establishing a transparent opt-out program for addressing privacy concerns and allowing consumers to choose not to have their data collected for future targeted ads. However, the water gets more murky when it comes to online and mobile advertising to children. Advertising to children is laden with issues and I’ve talked here on Madison Ave Insights about how the FTC and other regulators have taken a particular interest in children’s privacy and data security.
This year’s Children’s Advertising Review Unit (CARU) Annual Conference will discuss a number of critical issues in children’s advertising, including apps, social media, and location and other data security. With more children online (even at school) in today’s age, how do we as advertisers ensure we are keeping kids safe?
I sat down with Genie Barton, Vice President and Director, Online Interest-Based Advertising Accountability Program and Mobile Marketing Initiatives at the Council of Better Business Bureaus (CBBB), to discuss the effectiveness and challenges of online behavioral advertising (OBA), especially for children.
Regulators and privacy advocacy groups have varying degrees of concern about the collection and use of data to provide consumers with advertising that is based on their previous browsing activities across websites and time. In addition, some consumers also have concerns, but there is a high degree of debate regarding consumer preferences. Some studies show significant concern, while others show that in real life scenarios, consumers prefer ads that are relevant over ads that are random. But what I think we can all agree on is that the two largest areas of concern for regulators, privacy advocates and consumers stem from the largely “invisible” nature of online interest-based advertising. The industry responded to those concerns, as expressed by the Federal Trade Commission in a staff report providing guidance on how to implement self-regulatory principles governing OBA, by creating consensus principles that provide the transparency and control that were missing. I like to say that the DAA Principles took the mystery and potential “creepiness” out of interest-based advertising by providing real-time notice and a direct link to an easy-to-use opt-out. These innovations—the sideways blue triangle known as the AdChoices Option Icon, which appears in all interest-based ads, and takes the consumer to an explanation of OBA and a link to a choice mechanism—shine a light for consumers on interest-based ads.
I navigate this ecosystem with a lot of help from my friends and fabulous staff, and by constant reading and discussions with people in the industry. Just when I think I have a handle on something, there is another innovation. But that is what makes the job fun and keeps it fresh. I would advise advertisers to make privacy a positive differentiator for their brand. To do this successfully, the advertiser has to be extremely careful with what companies it engages to guide it on developing an ad campaign. Be sure to deal with an agency and all others in the ecosystem that follow (and ensure that you will be following) the highest industry standards. While an OBA campaign can be the most effective way of reaching the right customer, doing it without the transparency and control provided by the DAA program can actually damage the brand and its relationship with its customers. A recent study showed that consumers prefer to do business with companies that engage with their customers on privacy issues. The study also showed that consumers click on ads with the icon more readily than on ads without it. So providing consumers with transparency and choice is a positive for the bottom line.
The Digital Advertising Alliance (DAA) recently issued guidance explaining how its Self-Regulatory Principles for Online Behavioral Advertising and Multi-Site Data apply to certain types of data in the mobile space. The DAA’s Self-Regulatory Principles are a direct response to the Federal Trade Commission’s (FTC) call for advertising industry self-regulation in the digital space.
The DAA clarified that its Self-Regulatory Principles are applicable to three newly-defined classes of mobile data: (1) data collected from a particular device regarding app usage over time on non-affiliated apps (Cross-App Data), (2) data about the physical location of the individual or device (Precise Location Data), and (3) calendar, address book, phone/text log or photo/video data created by a consumer and stored on a device (Personal Directory Data). In addition, the DAA reaffirmed the applicability of the Self-Regulatory Principles to the collection of data over multiple sites (Multi-Site Data). Significantly, the DAA acknowledged that it may not be feasible to comply with the Self-Regulatory Principles on mobile devices in the same manner as on desktops. For example, devices with small screens might make it difficult to provide notice of Multi-Site Data collection on the same webpage where this data was collected. In such instances, the DAA stated that notice would be acceptable as long as it is “clear, meaningful, and prominent.”
Data collection for operations and systems management, market research, product development and reporting for ad delivery purposes are all exempt from the Self-Regulatory Principles’ notice requirements. In addition, de-identified data that does not associate or connect an individual with a particular device is carved out from certain compliance obligations. Note, however, that none of these categories of data may be used to determine eligibility for employment, credit, healthcare treatment or insurance.
Notably, the DAA made clear that the new guidance is in an “implementation phase” and that, during this phase, the guidance will not be in effect or enforced by the DAA. However, once the DAA announces that this new guidance is effective, it will begin to enforce any non-compliance through its accountability mechanisms.
Continue Reading DAA’s New Privacy Guidance for the Mobile Environment
Foxwoods, Mohegan Sun, Harrah’s: these are a few key players in the gaming industry. And many who frequent the craps tables or drive past their billboards know that these casinos (and many others throughout the country) are owned by Native American tribes. Although regulated by the Indian Gaming Regulatory Act, Native American gaming has recently been on the rise, largely due to the government’s limited ability to prohibit gambling on Indian reservations and other lands of tribal sovereignty. In fact, according to a recent analysis by Bank of America Merrill Lynch, Native American gaming represents 43 percent of U.S. gaming industry revenue – with Las Vegas representing only 10 percent and regional commercial gaming the remaining 47 percent. Two hundred thirty-six Native American tribes operate four hundred twenty-two facilities across around twenty states. How does the Native American gaming industry continue to grow in the midst of the down economy while some Las Vegas resorts and casinos have shuttered their doors?
I sat down with Jim Diamond, an expert in Indian Law, to discuss the recent rise of Native American gaming and casinos.
Many people aren’t aware that games of chance are a part of Native American – Indian – culture and are not a recent invention. Even before the arrival of the Europeans, American Indians played individual games like dice, or team sports, for example, and wagering was a common element of the activities. Large scale commercial gaming sponsored by American Indian tribes proliferated in the 1980’s when Reagan-era budget cuts forced tribes to find alternative sources of operating funds. States then ventured into expanded reliance on lotteries. The result was that a number of tribes like those in Florida and California expanded gaming, first by expanding bingo games. This met with opposition by the states, who said the expanded gaming ran afoul of state anti-gambling laws. The tribes sued in federal court and a federal regulatory scheme, Indian Gaming Regulatory Act (IGRA), with permissive Indian tribal gaming was the result. IGRA forced states to enter into agreements – compacts – with Indian tribes, but under a framework established under federal law.
First, states that permit Indian gaming have come to heavily rely on the whopping $1.4 billion tribal gaming contributes to state tax revenues. Most significantly, Ron, I think the American experience with Indian gaming has led to a change in popular opinion that the social harms feared to result from expanded gambling have been largely unrealized. So, with the reduced fear of gambling addiction or organized crime and the dependence on the tax revenue, gaming is now everywhere. The popularity of Indian gaming has led states to vastly expand non-Indian casino and other gaming. Around twenty states now have commercial casinos. The popularity of Indian gaming has also led states to be more open to expand other forms of permissive non-Indian gambling like the popular riverboat gambling, racetracks, and off-track betting. Charities and religious groups have also benefitted from the permissive atmosphere with expanded “Las Vegas nights” and bingo. So the overall resulting expansion of legal gambling has meant consumers don’t have to travel as far to gamble.
In the futuristic world of Minority Report, Tom Cruise’s character walks into a Gap clothing store; his eyes are scanned and a 3D hologram of a saleswoman welcomes him by name and inquires about his satisfaction with his previous Gap purchases. The movie is set in 2054, but this scene may not be too different from the world we live in today.
Retailers such as Nordstrom, Family Dollar, Benetton and Warby Parker are testing new technologies that track customers’ movements throughout their stores by following the wi-fi signals from customers’ smartphones. As part of a movement to gather data about in-store shopping behavior, retailers are also using video surveillance technology to detect moods based on facial cues, catalogue how many minutes are spent in a particular aisle and how long a customer looks at merchandise before making a purchase. Retailers who employ these technologies can use the information gathered to determine the ideal store layout or to provide targeted offers based on a customer profile. So far, some consumer reactions have been less than positive. However, this data gathering is no different from the digital equivalent: e-commerce sites that use cookies and other online tools to determine who consumers are and how they shop. Nonetheless, it appears that, for many, transporting these technologies to brick-and-mortar stores is striking some shoppers as just too creepy. In fact, Nordstrom ceased experimenting with this technology partly in response to customer complaints.
Those objecting may not realize that location-based targeting has been around for some time. For example, GPS-based apps can determine whether you are in a particular store and immediately offer products and deals available at that retailer through your mobile device. While this practice may have turned some consumers off initially, it is increasingly an accepted practice. One notable difference, however, between app-based targeting and brick-and-mortar tracking is that those who download these theoretically apps expect location-based tracking, whereas those who walk into a store likely do not expect to be monitored and targeted.
Continue Reading Is Big Brother Tracking Your Actual Footsteps?
Gatsby. His name has been forever immortalized through the words of F. Scott Fitzgerald. For most of us, it conjures up memories from high school English classes, but now it’s being broadcast all over in ads and trailers for surrounding the film adaptation. The Great Gatsby’s big movie turn got us thinking about how marketing strategies around blockbuster film adaptations impact book sales and play into the publishing industry. Some of the biggest flicks to hit silver screens in the past few years have been adaptations from books – Harry Potter, Twilight, The Hunger Games, Silver Linings Playbook. And of course, this practice is nothing new. Even Gone with the Wind is an adaptation of a book. So how do movie adaptations tie into marketing strategies to sell books?
I sat down with Rachel Coun, Executive Director of Marketing, Trade Books at Scholastic Inc., to discuss marketing strategies for books that become blockbusters.
When a film adaptation comes out, we have the great opportunity to reach new people who are eager to see the film and have not read the book yet. Plus, when the movie is based on the first book of a series, you are able to promote that next book in the series to the existing fans as well. Prior to its theatrical release, we advertised The Hunger Games on Facebook and popular movie and entertainment websites with “It started with a Book” messaging. Once the film released, we added “And the Story Continues” to the copy line and linked the ad to all three books in the series. In addition, we sent out an eBlast, with that same messaging, directly to people who purchased The Hunger Games movie tickets online. We promoted The Hunger Games Movie Tie-In Book to both that new movie audience as well to existing Hunger Games fans. This entailed retail displays featuring a movie image; placement on our Hunger Games Facebook page and Scholastic website; social media outreach via Facebook and Twitter; and advertising on Hunger Games fan sites that cater to both the book and film audience. We also have worked with movie studios on cross-promotions that included movie tie-in book giveaways via on-air radio promotions and media events.
We release movie tie-in books a good six weeks prior to a film release to give a new audience time to read the book before the movie comes out as well as create energy among existing fans who are waiting to see the film. The books still are promoted at retail for several weeks after the movie releases to bring new fans to the brand.