E-Commerce and Online Marketing Attorney
subscriptions | Email | Affiliate | social media | forums | directories
Having an e-commerce presence is now the norm for businesses of all sizes. Along with the tremendous business opportunities e-commerce provides in a rapidly globalized economy, there are new risks and regulations upon which businesses of all sizes must effectively navigate. Our e-commerce Attorney's proactively counsel e-commerce companies to effectively reduce risk while also defending against regulatory litigation facing business clients with an online presence.
Our e-commerce attorneys can assist with a wide-range of online business counsel including but not limited to California-specific regulations as well as federal and international law.
- Complying with California and federal laws with Online Subscription Agreements
- CAN-SPAM & Email Marketing
- Text Message Marketing
- Fax / eFax Marketing
- Complying with California and federal privacy laws
- Affiliate Advertising
- Lead Generation
- Forums, Directories, Review Sites
- Online Contests, Sweepstakes, Games & Promotions
- Sponsorships and Online Influencers
Online Subscription Agreements
Businesses online have quickly realized the power of subscription-based services for both physical and digital products, especially software as a service (SaaS). Recurring, consistent revenue clearly comes with its perks for businesses of all sizes and it's hard to find an online business model that isn't based on either capturing page views for marketing or providing products/services on a subscription basis. Our Internet business attorneys understand the business models and revenue drivers of subscription-based businesses and can ensure these core business agreements are enforceable, effective, and legal.
CA Automatic Renewal Law (ARL)
The ARL (California Business and Professions Code § 17600) imposes a series of requirements on businesses that utilize automatic-renewal or continuous-service programs to California customers. First, the company must present the automatic-renewal terms in a "clear and conspicuous" manner in visual or temporal proximity near a request for consent to the offer. Second, the company has to obtain affirmative consent before charging a customer's account. Third, the company must provide an acknowledgment that includes the automatic-renewal terms, cancellation policy and information regarding how to cancel the subscription in a manner that is capable of being retained by the consumer.
The statute also includes requirements for providing an easy-to-use mechanism for cancellations and for giving additional "clear and conspicuous" notice if there is a material change to the automatic-renewal terms after a customer has accepted.
Restoring Online Shopper's Confidence Act (ROSCA)
This Act prohibits any post-transaction third party seller (a seller who markets goods or services online through an initial merchant after a consumer has initiated a transaction with that merchant) from charging any financial account in an Internet transaction unless it has disclosed clearly all material terms of the transaction and obtained the consumer's express informed consent to the charge. The seller must obtain the number of the account to be charged directly from the consumer.
Email Marketing, Compliance and Litigation Defense
Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM)
Any business sending commercial email and engaging in internet marketing needs to understand the CAN-SPAM Act of 2003. Violations of the CAN-Spam Act are subject to penalties up to $16,000 for each violation. As a result of the high statutory damages, non-compliance could result in a multi-million dollar judgement.
The Act sets the rules for the transmittal of commercial email, establishes requirements for commercial messages, provides consumers an "opt out" mechanism for future emails and sets civil and criminal penalties for violations. The law applies to all email, even emails to existing customers or business-to-business emails. Commercial messages are defined as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service".
While all commercial email is subject to the CAN-SPAM Act, not all commercial emails are subject to all provisions. For example, emails containing predominately transactional or relationship messages do not necessarily need to comply with most of the provisions of the Act. Another factor of CAN-SPAM is that compliance of the Act cannot be outsourced, thus making it important to effectively monitor third-party marketings services.
Our e-commerce attorneys understand the best defense against email spam lawsuits is a solid understanding of the CAN-SPAM requirements, best practices, and defense techniques and are prepared to assist with preventative best practices as well as litigation defense.
- Best Practices
- Unsubscribe Compliance
- CAN-SPAM Compliance for Affiliates
- Content Compliance
- Sending Behavior Compliance
- CAN-SPAM Litigation Defense
Text Message Marketing
There are two primary laws by which the FCC regulates text and email marketing spam. They are commonly known as the TCPA and CAN-SPAM. While these laws weren't necessarily written with SMS marketing in mind, text messaging has been included under the same regulations as telemarketing and auto dialers.
TELEPHONE CONSUMER PROTECTION ACT (TCPA)
The TCPA restricts telephone solicitations (i.e., telemarketing) and the use of automated telephone equipment. The TCPA limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages, and fax machines. It also specifies several technical requirements for fax machines, autodialers, and voice messaging systems.
Affiliate Marketing & Lead Generation
An affiliate marketing program is a marketing strategy in which one business compensates a third party for bringing clients to the business by using the third party's own marketing efforts. Affiliate marketing programs are constantly innovating with new tools and incentive programs. Our internet attorneys can assist with structuring a legal, profitable affiliate marketing system as well as enforcing or defending actions taken where an affiliate is involved including but not limited to:
- Strategizing on appropriate compensation and incentives (per click, per lead, per sale, per action, etc.)
- Counseling on Commission Step-ups, Termination Provisions, Indemnity, Privacy and other Policies
- Analyzing Existing Affiliate Contracts
- Drafting New Affiliate Agreements
- Proactive Counsel Regarding FTC Regulations & Truth in Advertising Laws
- Addressing Trademark and Copyright Infringement Issues
- Assisting with Affiliate Marketing Disputes
- CAN-SPAM Compliance for Affiliates
- FTC Disclosures fror Affiliates
Online Contests, Sweepstakes, Games & Promotions
Curious about the difference between a contest, a giveaway, a sweepstakes, a promotion, a skill contest, and a lottery? In today's competitive online marketplace many companies rely heavily on innovative and creative "promotions" to generate buzz, sell product, and generate an attractive ROI on marketing dollars spent. Tech-savvy marketing professionals are tasked with implementing such promotions are often unaware of the complex legal overlay of the online digital world and the significant financial and legal repercussions for their company’s failure to comply with state and federal laws.
- Skill Contests
- App Developer Contests
- Sales Incentives
- Social Media Promotions
- Online Contests
- Games of Chance
If the promotion involves skill, rather than random chance, it might be a contest since a “contest” or “skill contest” refers to a promotion where skill or the ability to perform a required task determines the winner. If there is a mix of chance and skill to determine the winner(s), you may have an illegal lottery.
Comprehensive Online Advertising Counsel
Forums, Directories, Review Sites
Sponsorship & Influencer Agreements
Online Advertising General Counsel