August 15th, 2013/Business/By /

Business: 5 Legal Internet Marketing Questions Answered by Lawyer Aaron Kelly

I’ve seen countless affiliates get sued over the past few years: using pictures of people without the right permission, not disclosing the proper terms, using advertising techniques that are banned, etc. Being young and not understanding the laws is not an excuse.

I’ve never talked about the legal issues involved with internet marketing because I’m not a lawyer. The good news is lawyer Aaron Kelly has agreed to answer some questions from my readers. He’s a lawyer who specializes in internet marketing laws and has a great reputation in the industry.

Benjamin Franklin said, “An ounce of prevention is worth a pound of cure.” It’s definitely better to spend money on a lawyer and getting your marketing right, than ending up losing everything in court. Make sure you get a lawyer that understands the industry; don’t ask your uncle who specializes in beating traffic tickets to check if you’re compliant.

Thanks again for your time and expertise Aaron. If you’re interested in a consultation with his office, his contact information can be found here.

1. What are the risks of promoting things internationally? Can an American get in trouble for promoting shady products or using aggressive marketing tactics in foreign countries like France, UK, or Germany?

Yes, an American could get in trouble for either a) Violating the laws of the United States or; b) Violating the laws of the country to which the American markets. For example, in FTC v. Commonwealth Marketing Group, Inc., the court ruled that “unfair or deceptive acts or practices,” when committed against foreign consumers by American companies, are subject to the FTC Act and can be dealt with by the American courts.

An American company could also be pursued by foreign courts or governments. The recent European Union antitrust probe against Google Inc. is a perfect example of this.

2. What are the most common ways affiliates are getting in legal trouble, and what steps can I take to make sure I don’t get in trouble as well?

From my experience, affiliates most often engage in what might fall under the “unfair or deceptive acts or practices” prohibition in
the FTC Act. A non-exclusive list of recommendations I have would include:

  • Don’t use fake testimonials. If you want testimonials, use real people. If your testimonials are paid for, disclose that fact.
  • Disclose the fact that you have a financial stake in the information that you provide on, say, a landing page. You know those fake online newspaper report-style landing pages? Don’t do it. You can promote, but make it clear somewhere on the page that what you’re saying has a biased, commercial point of view.
  • If you’re doing anything that involves rebilling, make that completely obvious to your customer… multiple times. Having a Terms of Service or other agreement that the consumer clicks a box next to that says “I agree,” but which has a provision to charge a monthly fee for something that you advertised as “Free” is a big no-no. I often see cases where a product is offered for “free” but the credit card gets charged without the consumer ever having been made aware that this would happen.

3. I design my own landing pages and write my own copy. My creations are 100% my own. The problem is they keep getting ripped by affiliates as soon as I make them. Is there any way I can protect my assets legally? Can I send DMCAS or copyright anything?

Yes.

When you create an original work like a landing page, it is copyrighted. If someone publishes a copy without your permission, you are entitled to initiate an action for injunctive relief (fancy talk for getting a judge to tell them stop it or they’ll be arrested for contempt) and damages.

It’s often not worth the trouble to start a court case, so the next best option is sending a takedown notice to their hosting provider that is compliant with the Digital Millennium Copyright Act, or an analogous notice if the website is subject to
foreign law.

You can also complain to any affiliates they might have, and many will often cease relations with the infringing party, meaning you’ve just hurt their bank account. Be careful with complaining to third parties, because if you’re wrong about the content being infringing, you’ve just committed defamation against the person.

4. I’m looking to set up a 100% compliant advertorial for a new BizOpp (* Cough*, i mean Educational offer*). Could you please ask Aaron to detail the most important aspects of setting up a compliant advertorial?

See my previous answer about fake newspaper articles. I don’t like this kind of advertisement because it strikes me as deceptive per se, until someone adds a bunch of disclaimers.

If you must go the advertorial route, make it very clear to your reader with a notice that there is a bias on the part of the publisher and that you have a financial stake in what you’re promoting.

5. I’ve been ripped off by non-paying affiliate networks and advertisers. Have there been any success stories of affiliates suing and getting their money owed?

Yes. I have represented many clients in this situation. If the money isn’t paid because an affiliate broke some contractual obligation, it might be difficult to sue. It might also be difficult to recover damages, even if successful in a lawsuit, if the affiliate network has stopped paying because it simply lacks the assets to do so (there are ways around this, such as going after a director if they were involved in some sort of fraud against an affiliate). This kind of case is usually one of the most straightforward that I deal with, though, as long as a client has the relevant records and contracts since it’s very hard to debate the basic math used to determine what an affiliate network should have paid an affiliate.

Aaron M. Kelly, founding partner of The Kelly/Warner Law Firm, focuses on online marketing compliance law, defamation law and business law. Mr. Kelly is a Martindale-Hubble rated attorney who also enjoys a “superb” rating on lawyer review website, AVVO. In general, Aaron works with small businesses, tech companies, startups, direct marketers, affiliate marketers, affiliate networks, advertisers, venture capitalists, web hosting providers, and search engine optimization (SEO) firms. He also has aided hundreds of individuals and companies who’ve been defamed or trade libeled — both online and off.