Search Marketing and its Legal Risks
Search engine marketers today must be mindful of the legal issues surrounding the medium — click fraud, copyright infringements, consumer privacy regulations, to name just a few. While an effective and efficient means for acquiring customers, the vehicle has its perils. In a session at last week’s Search Marketing Expo East conference in New York City, a panel of legal authorities led a session aimed at educating search marketers on the latest legal developments in their industry.
When it comes to search today, behavioral targeting and privacy issues dominate the legal landscape. “There’s a general squeamishness about behavioral targeting,” said Mark Rosenberg, counsel at Sills Cummis & Gross law firm, “and a lot of it’s based on a lack of understanding.”
The general rule of thumb when it comes to using personal identifying information (PII) is you need to ask the consumer’s permission through an opt-in process. But there’s always a public outcry when you merge PII with anonymous Web browsing, warned Roy Shkedi, founder and CEO of the media and advertising technology firm AlmondNet. “You need to tell people about online data acquisition.” Shkedi said self-regulation is the key, noting that all sites should have a privacy clause at the bottom. And if you do share PII, state that you do this anonymously and provide the terms of the agreement, as well as the opportunity for the consumer to opt out.
Google AdWords account ownership disputes are also frequently posing challenges for search marketers, particularly within organizations. According to a recent ruling, AdWords account information (such as a password) was ruled trade secrets. With this in mind, Jonathan Hochman, founder and president of the Internet marketing services firm Hochman Consultants, posed four questions that every search marketer should ask themselves:
* Do you have a contract with your consultants/clients that specifies who owns the AdWords account?
* Is that relationship work for hire?
* Do you understand the terms and conditions of that contract?
* Who has access to these accounts?
Another area of concern for search marketers is the use of trademarks. Two examples of when the use of another company’s trademark is allowed are as a keyword and in Web site content to make product comparisons. On the other hand, the following practices fall under trademark infringements: to get a more prominent paid or organic search listing; to divert traffic from a competitor’s site; and using a competitor’s trademark in a meta tag.
The general rule is to not cause confusion, said Rosenberg. When Internet users arrive at the wrong site, they often stay. This causes your competitor to lose sales, thus creating the legal challenge.
“If you’re deceiving the consumer, you could be held liable,” added Deb Wilcox, partner at the Baker & Hostetler law firm.
The courts also put limits on the use of allowed trademarks. Such restrictions include using the trademark too many times, using the trademark too prominently and using the company logo without the trademark. But the court is prematurely slow on these cases, Rosenberg said, and many of these suits are settled out of court.
Wilcox noted that the courts are still grappling with search engine marketing and how to ready trademark infringement, and it’s best to bring in your own experts to advise you on these complicated issues.
