Advertising, marketing and sales are critical ingredients for the expansion of a company. They allow identifying new customers and new markets in order to generate revenues for the business.
The use of personal data in connection with advertising, marketing and sales presents unique data protection challenges for companies. Companies invest in sophisticated advertising, marketing and sales tools in order to collect reliable personal data and build databases of personal data, so that they can target more efficiently the potential purchaser of their products or services.
There is a constant tension between, on one hand, the company’s need to know as much as possible about its customer’s preferences so that it can target the most likely interested parties, and on the other hand, the individuals’ need to protect their private life or private time. Concurrently, everywhere in the world, legislators draft and enact laws that aim at limiting companies’ ability to access or use personal data in order to target and solicit potential customers.
We regularly advise companies on the numerous US laws and regulations that govern advertising, marketing, and solicitations. For example:
- CAN SPAM Act, and related FTC and FCC regulations;
- Telephone Customer Privacy Act;
- FTC Telephone Sales Rule;
- Federal and State Unfair & Deceptive Practices Act;
- FTC Behavioral Targeting Principles.
We have in-depth knowledge of these laws and related regulations. We keep informed of the legislative and regulatory developments on these matters, and the related case law and enforcement actions.
When dealing with marketing and advertising issues, our services encompass a wide variety of activities, such as:
- Advising companies on recent legislative or regulatory developments that affect their business;
- Assisting in the drafting of commercial communications that address and comply with the applicable restrictions;
- Developing and implementing CAN SPAM Act compliant processes;
- Interacting with the marketing and advertising department of the business in connection with marketing campaigns;
- Providing training for the company’s sales force in order to ensure continued compliance with the applicable laws; or
- Drafting and negotiating contracts with service providers in order to adequately address the limitations to their use of personal data used for with marketing campaigns.
Outside the United States, the laws that address unsolicited commercial communications are generally stricter and more restrictive. Numerous countries prohibit most forms of unsolicited marketing communications unless the proposed recipient of the communication has previously opted-in to receiving these communications. The legal framework promises to become even more complex when the European Union Member States implement the 2009 Amendments to the 2002 E-Privacy Directive.
As part of our global services to our customer, we follow these developments and keep our clients informed of the recent changes and the new requirements or restrictions that may affect their foreign operations. For projects that involve compliance with foreign data protection laws, we work with our foreign affiliates, which are located throughout the world.