After looking at the most popular posts from 2012 in our last edition, today we look at what are likely going to be the big trends for 2013 in internet and marketing law.  

Privacy and COPPA – Although this issue is not likely to dominate the general business population, privacy and COPPA will continue to dominate the media’s coverage of internet law issues — just look at Instagram’s latest dustup.  Right before the new year, the FTC officially passed their COPPA regulations.  Although the changes have been in the works for almost a year, it will take a while for companies covered by the Children’s Online Privacy Protection Act – generally websites targeted or directed to users under 13 – to comply.  Surprisingly, respected folks like Nickelodeon have had COPPA issues and the FTC is watching the mobile app industry

Cyber-Security – An issue likely to catch people off guard is cyber security legislation that may be written broad enough to cover more than just the major telecoms.  Last year, efforts like the Cyber Intelligence Sharing and Protection Act (CISPA) and the Cybersecurity Act of 2012 failed to become law.  Both the CSA and CISPA drew critics mainly related to personal privacy.  The President may simply act by executive order.  The business question remains how broad will any laws be, what sites and service providers will have to comply, what will that mean and how much will that cost?  For more, David Gewirtz outlines the 14 Global Cybersecurity Challenges for 2013 on ZDNet.

Software and Tech Patent Reform – Whenever a programmer finds out I am a lawyer, I instantly get a tirade about our broken patent system.  I’m guessing Apple, Samsung and Motorola would agree.  In the well-covered battles,, the only winners appear to be the lawyers.  Although I don’t practice patent law (it is not a field where one dabbles, so I leave that to my colleague David Henry), I have a hard time deciphering what was to be learned from those expensive battles and what developers should do.   Maybe there is some hope for sensible patent reform

Amending the Communications Decency Act – The CDA is the law that prevents people from suing the likes of Yelp and RipOff Report for reviews generated by users.  It certainly makes sense not to allow lawsuits against Facebook and Google for defamation from other people’s content which would cripple those services.  But online defamation remains a hot issue and more people are fighting back.  I’m not sure if there will be any changes as the law is applied to consumer review sites, but what about loosening the law as it applies to sites whose whole sole purpose is to slander and then extort?  Sites that call people whores with photos and run SEO’ed pure gossip sites of private individuals, but then offer “reputational protection” services for a fee to remove the materials.  I purposefully don’t mention names or link to them so you won’t go check them out.  Instead, if you are interested, go to a good advocacy group like CiviliNation.   

The New Advertising Model – The FTC may push harder on Do Not Track legislation that could interrupt behavioral or targeting online advertising this year.  Facebook and everyone else is still trying to figure out mobile marketing.  I waxed philosophically at the end of last year about where advertising and user generated content may be going.  (Are the YouTube commercials you can’t escape getting longer and do I want to wait to see a 30 second video I am already skeptical about?)  Kirk Cheyfitz of PandoDaily says the best online ads of 2012 were not sctually ads.  There are bright minds trying to figure this out and I expect by the end of the year, we will talking about one of them and a new product, service or idea we haven’t heard of before.

In cooperation with Lawlines, I will be presenting a webinar titled “Online Marketing to Minors: Legal Pitfalls and Ramifications” on Tuesday, November 8, 2011, at 2:00 p.m. central (fee required).   The presentation will be recorded and available later on the Lawlines website.

We will discuss the Federal Trade Commission’s recent guidelines on the Children’s Online Privacy Protection Act, or COPPA, at length.  The FTC’s frequently asked questions available here are helpful.   If you just want the general rules of thumb, here they are:

1. Tell parents exactly what inform you collect from children and how the information is used or disclosed.
2. Obtain verifiable consent from parents prior to any data collection.
3. Invoke a mechanism that allows parents to review the specific personal information collected and provides parents an opportunity to refuse the further use of the data.
4. Only collect what is reasonably necessary to provide the service to the child.
5. Take reasonable steps to protect the confidentiality, security, and integrity of the children’s personal information.
6. Include a link to the FTC’s website to provide tips on protecting children’s privacy online: www.OnGuardOnline.gov.

Today, we start a two part series on marketing to minors online.
The law has always sought to protect minors when it comes to commercial transactions. The conventional rule is that someone under 18 cannot bind themselves to a contract. It should, therefore, be no surprise there are special laws about marketing to children on the Internet—even when you don’t mean to.

OMG! I contracted with a minor.

A perfect warning for those trying to contract with minors comes from the fight over rights to the @OMGFacts brand. Seventeen-year-old Adorian Deck tweeted about celebrity gossip and weird news. Emerson Spatz allegedly paid Deck $100 and promised Deck a share of profits from merchandising and a YouTube Channel. Deck also assigned all current and future copyrights to Spatz. Spatz marketed the Twitter feed as part of his media company that targets youngsters.

The teen now claims the deal was unconscionable and unenforceable because, in part, of his age although Deck’s mother also signed off on the contract. Since signing the contract, the @OMG Facts brand has gone from 400,000 followers to roughly 1,900,000 million. When knowingly contracting with a minor, take heed.

We will apply this principles to online marketing in our next post.  In the meantime, even if not in strict violation of the law, the court of public opinion can look down upon marketing on Facebook because of the presence of minors on the site.