Internet Media Law 101

I’m not a lawyer. I don’t even want to play one on TV. But the simple fact is the agreements we, as an agency, enter into with publishers are legal agreements. We must all play lawyer now and again. So, it only makes sense to occasionally take stock of the prevailing legal landscape.

As with everything else in the interactive world, the legal landscape continues to evolve. In April 2002, the American Association of Advertising Agencies (AAAA) and the Interactive Advertising Bureau (IAB) released Terms & Conditions for Internet Advertising (Version 2.0, in fact). The document was intended to address a number of industry problems related to agreements between agencies and publishers and to provide a common ground on which publishers and agencies could do business.

For that, I thank them.

The IAB and AAAA did the industry a huge favor in setting these standards. Yet I’m not sure the industry has done itself a favor by adhering to them. Truth be told, I’m not sure how many publishers and agencies really do adhere to them.

We appear to have a very simple problem with two contributing factors:

  • The agencies

  • The publishers

I’m an agency guy, so I can easily speak from the agency perspective. I wish I could advise all of you, from one agency person to another, to seriously consider fully adopting Version 2.0. If I did, I’d be a hypocrite.

My agency asks publishers to agree to Version 2.0, but we tack additional terms onto that agreement. We’ve found Version 2.0 does a fine job, for the most part, addressing many issues that might arise as part of doing business with publishers. But we’ve found some exceptions, including the following.

CAN-SPAM

CAN-SPAM wasn’t around when Version 2.0 was released. If you want to protect yourself and your clients from the legal ramifications of any noncompliance on the part of a publisher or email partner, you must address this separately. The fair thing to do is agree the publisher/email partner will accept full responsibility for any noncompliance on its end, just as the agency/client does.

The publisher or email partner must adhere to legal opt-in practices, opt-out policies, and so on.

The agency or client must ensure subject lines are clear and relevant; opt-out policies are built-in; the sender’s physical address is included in the body of the email; and so forth.

Of course, handling unsubscribe requests (ensuring requests are processed within 10 working days, seeing to a proper hand-off between the email’s manager and the owner of the client’s email lists, etc.) must be coordinated between email partner and client. There’s a gray area of shared responsibility that must be spelled out in agreements.

Default Banner Discrepancies

As an agency or advertiser running rich media, you want impressions you pay for to run against your rich media creative. We always deliver a default GIF banner to the publisher for cases when rich media cannot be served, which is completely understandable. Make sure you limit the percentage of impressions that can run against that default GIF ad.

Ad-Tracking Tag Mistakes

Version 2.0 allows a 10 percent variance between third-party ad-serving numbers and the publisher’s impression delivery numbers. Again, this is fair. But what happens when:

  • The publisher fails to implement a tracking tag? Some publishers want to fall back on the 10 percent variance even when they’ve made a mistake. Tracking tags are integral to monitoring a campaign’s performance. If the site makes a mistake that compromises the agency’s or advertiser’s ability to track performance, the publisher shouldn’t bill for that inventory.

  • The publisher fails to remove the tracking tag after a campaign ends? In this scenario, the publisher’s server continues to make calls to the agency’s or advertiser’s third-party ad server. Every time this happens, the advertiser is charged. Should the advertiser be held responsible for the publisher’s mistake?

Publisher’s View Wanted

I mentioned above there are two perspectives on the terms and conditions problem. I’ve addressed the agency’s perspective on a few points, arguably a one-sided discussion. I know publishers could make plenty of points about provisions they need for their own protection. I encourage publishers to provide feedback so I can present their side of the argument in a future column.

My hope is this will result in the AAAA and the IAB issuing Terms & Conditions for Internet Advertising, Version 3.0, addressing these issues. Even then, there will be agencies and publishers who won’t adhere to it, for whatever reason. It won’t be long before our business changes in ways Version 3.0 can’t address.

Let’s hope with every new version, we get closer to the point where we don’t have to play lawyer every day. Then I can get back to my real dream: playing a doctor on TV!

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