The Regulation of Marketing and Advertising Seminar

Digital Marketing

August 2019

Ridwaan Boda | director

Head of Technology, Media and Telecommunications law

rboda@ensafrica.com+27 11 302 3289

+27 83 345 1119

Director | Member of the United Nations Global Pulse Privacy Advisory Group

Vice-Chair – Substantive Committee of Technology Sourcing – International Technology Lawyers Association

Overview

• digitization

• email marketing

• online marketing

• social media marketing

• other marketing means

• use of AI and (Big) Data in marketing

• intellectual Property considerations

DISCLAIMER: THE IMAGES USED IN THIS PRESENTATION ARE FOR ENTERTAINMENT PURPOSES ONLY. ENSAFRICA DOES NOT OWN ANY RIGHTS TO THE IMAGES. ALL IMAGES ARE PROPRIETARY TO THEIR RESPECTIVE IP RIGHTS HOLDERS

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Digitisation – Traditional vs Digital

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Online Marketing Offline Marketing

Marketing

• Website Marketing• Search Engine Optimisation• Pay-per-client Advertising• Content Marketing• Email Marketing• Social Media Marketing• Affiliate Marketing• Mobile Marketing• Video Marketing

• TV Marketing• SMS Marketing• Radio Marketing• Billboard Marketing

Digitisation of the Customer Experience

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Digitisation – Governance and Contracting

• Governance the starting point

• IT Governance – a Board Responsibility

• Need for sound procurement and contracting standards

• Balance legal risk versus velocity to digitize

• Traditional MSA versus fast track contracting methods

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Digitisation – Governance and Contracting –Digital Contracts

• I Accept

• Binding online contracts

• Contract versus policies

• Use of electronic signatures

• Proof of contract

• Retention Periods

• Content always key!

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Email Marketing

• Issues covered in previous section

• Includes ECTA, POPI, CPA

• Use of Third Party applications example Mailchimp

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Online: Apps and Websites

• ECTA Requirements – Section 43 Requirements

• Terms and conditions –

o General terms

o Specific terms

• PAIA Manual

• See Website Checklist

• Ensure developer, hosting and administrator contracts are sound

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Online - Advertising

• SEO / SEM

• Paid Advertising

• Pay per click

• Affiliate Marketing Programs

• Online Classifieds

• Tracking of consumers – cookies

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Online – Some Practices

• Website scraping

• Website crawling

• Linking

• AdBlockers

• Denial of Service Attacks

• Malvertising

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Online – Some Practices

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Social Media Marketing Overview

• Be aware of terms of use

• Your administrator – powers and contracting

• Content Issues

• Copyright issues

• Use of Influencers

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Social Media Marketing – Popular Platforms

• Be aware of terms of use / advertising policies

• See Facebook for example: https://www.facebook.com/policies/ads/

• Prohibitions include payday loans, cash advances and bail bonds, multilevel marketing, personal health etc

• Recourse includes: “Advertisers are responsible for understanding and complying with all applicable laws and regulations. Failure to comply may result in a variety of consequences, including the cancellation of adverts you have placed and termination of your account.” and “We reserve the right to reject, approve or remove any advert for any reason, at our sole discretion, including adverts that negatively affect our relationship with our users or that promote content, services or activities contrary to our competitive position, interests or advertising philosophy.”

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Social Media Marketing – Your Administrator

• Any employee / third party with access to company social media portal represents a risk requiring mitigation

• Powers of your administrator needs to be formally documented in a policy / binding agreement

• Passwords and password policies to be clearly set

• Content which may / may not be posted to be made very clear

• Recourse for breach of policy / binding agreement needs to be clear

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Social Media – Content Issues

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Content Issues

Freedom of Expression

Harassment

Defamation

Reputational Risk

Copyright

Privacy

Golden Rules

Have you Googled Yourself/Company/Brand?

• What did you see?

o Doggo memes?

o Selfies from 2008?

o Drunken nights?

o Hello Peter?

o Tweets?

• Or thought leadership content that you want associated with your brand?

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If you are not leading the online content generation for your brand – who is?

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Reputation

• a business’ most valuable asset is its good name, its brand and reputation

• according to Forbes the number ONE way by which you can quickly lose your company’s brand reputational value:

o the internet and social media

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Reputation

• Employees can be the best brand ambassadors

• Employees can also be the worst brand ambassadors

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Freedom of Expression

• It takes years to build a reputation and only five minutes to ruin it

• People and organisations embroiled in controversy over tweets and posts

• Freedom of expression as a catch-all defense

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Freedom of Expression

• Constitution guarantees your right to freedom of expression -but it is not an absolute right!

• this right does not extend to:

o propaganda for war; and

o incitement of violence etc.

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Freedom of Expression

• freedom of speech does not give you the right to:

o say something that is hate speech

o infringe rights / privacy

o harass or bully

o breach confidentiality

o Be defamatory

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Freedom of Expression

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Defamation

• a spoken or published false statement that harms the reputation of a person

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Defamation

• action for damages against you

• financial compensation to the person who’s reputation was damaged

• Not always the best way to go

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Harassment

• Cyber stalking

• Revenge porn

• Cyber bullying

"harassment" includes conduct causes harm or inspires the reasonable belief that harm may be caused by unreasonably:

• engaging in electronic communication

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Harassment

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Family sues after 12-year old daughter’s suicide

Sentenced for harassing on social media

Privacy

• People have more access to information

• People demand transparency

• Culture of oversharing

• Location settings / checking in making the lives of criminals easier

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Privacy

• Privacy is not innate anymore. It is learnt behaviour

• The right to privacy is constitutionally enshrined – its not just POPI

• The test for privacy in SA is whether you have a reasonable expectation of privacy

• Privacy as an employee

o Social media profiles important – even recruiters view these

o Online CV becoming more important

o Set company policies / guidelines to employees

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Copyright

• music, videos, images, software

o misconception: work on the internet = public domain

o employees downloading onto company computers

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Copyright

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How to get the best

protection for your IP

Be distinctive

Conduct clearance searches

Register trademarks and company names

Register primary and defensive domain

names

Vigilantly monitor

Treat your IP trade marks as you would

other company assets

The Golden Rules

• When in doubt – don’t post it / tweet it

• Proofread everything

• Keep calm and exercise common sense

• Don’t be baited into a fight

• Approvals through proper channels (including legal)

• Check your facts

• Be prepared for attacks / trolls

• Don’t joke about bombs

• Don’t be a mean, gross human

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The Golden Rules

• Digital technology and social media are inescapable facts of life

• The same laws that apply to your conduct in the real world apply to your conduct in cyberspace

• It doesn’t matter if you weren’t the one who originally wrote it

• If you wouldn’t want the Police, your Parents, your Principal, a Predator or a Potential employer to see it, don’t post it

• You can be fired if you breach the duty of good faith that you owe your employer/bring the name of your employer into disrepute online.

• The reputational harm you will suffer by getting it wrong online is potentially far more serious than any legal or disciplinary consequences.

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Social Media Marketing – Use of Influencers

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Social Media Marketing – Use of Influencers

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Social Media Marketing – Use of Influencers

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Social Media Marketing – Use of Influencers

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• ARB Guidelines – see handout

• “Influencer” is an individual or group who brands pay to engage with social media in a certain way, on a certain topic or in the promotion of a brand or publisher. Often an influencer has or is perceived to have the ability to influence the behaviour or opinions of others, but this is not prescriptive to fulfil the role of a paid influencer.

• Marketer / Brand Responsibilities

• Fake Marketing (see article)

Social Media Marketing – Use of Influencers

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Ensure there is a formal contract in place

Contract must include approval of content process

Recourse rights, including rights of deletion

Morality clause?

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Other Marketing Tools

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SMS – direct marketing USSD – user initiatedBlogging – similar to

influencers

Telephonic – does POPIapply?

Video – privacy, copyright, content issues

Use of AI and (Big) Data

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10%

10%

9%

13%

13%

15%

15%

16%

16%

20%

23%

29%

34%

0% 5% 10% 15% 20% 25% 30% 35% 40%

Other

None, we are not intergration AI

Asset Performance Management

Field Service and Support

Employee Collaboration Suites

Supply Chain Management

Manufacturing and Operations

Vertical Specific Software

Financial Management Systems

Cyber Security

Digital Marketing Platforms

Call Center Serice and Support

Customer Engagement Applications

Use of AI and (Big) Data

• Data – the new oil

• “The Worlds Most Valuable Resource” – The Economist

• Data Commercialization

• Privacy issues can be addressed and overcome

• Use of third party data

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Use of AI and (Big) Data

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In-store tracking

Online tracking

AI – difference between ethics and law

Privacy by design to be considered

POPI Requirements

AI and (Big) Data

Use of AI and (Big) Data

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Some IP Issues in Marketing

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Registrations –Trademarks,

Domain namesCopyright Issues

Content licensing

Ridwaan Boda | director

Head of Technology, Media and Telecommunications law

rboda@ensafrica.com+27 11 302 3289

+27 83 345 1119

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thank you

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