Advertising Law

Tuesday, February 28 to Wednesday, February 29, 2012

The Rembrandt Hotel, London

Main Conference, Day 1 - Tuesday, 28^th February 2012

8.30 Registration and Refreshments

 9:00 Opening Remarks from Conference Chair

Brinsley Dresden, Partner, Head of Advertising Law, Lewis Silkin LLP

9.15 Advertising Regulation and Enforcement Round Up: Insights on the Implications of ASA’s Extended Remit and Other Hot Issues From Those in the Know

Shahriar Coupal, Secretary, Director of Advertising Policy and Practice and CAP Secretary, Advertising Standards Authority

Ian Twinn, Director of Public Affairs, ISBA

• How does ASA’s newly extended remit cover online advertising, UGC and social media channels?

• Nature and volume of complaints received so far on internet advertising activity

• Overview of the CAP code and what online advertising activities could potentially constitute a breach

• Enforcement priorities and approach for 2012

• Defining goods and services in the digital age: is there scope for a hybrid class in upcoming changes to consumer

legislation?

• Latest ASA guidance on advertising to children and specific considerations for targeting children through digital media

• Potential limitations on ad spends: status and salient details of the recent OFCOM decision

• ASA perspective on the L’Oreal Case, the Kellogg’s case and other important decisions over the last few months

• Substantiating health and nutrition claims – update on proposed regulatory changes stemming from Brussels

and scope for making such claims at present

 10.15 Morning Refreshments

 10.30 Avoiding Liability When Obtaining and Using Consumer Information: Determining and Staying on the Right Side of the Consumer Privacy Line

Dave Evans, Group Manager – Business and Industry, UK Information Commissioner’s Office

Johanna Pimentel, Director of Privacy – EMEA, Western Union

• Opt in and opt out requirements for being contacted by phone, email and other means: what are the current requirements

and how do they vary across different European markets?

• Prevailing laws and norms on collecting information gained through consumer surveys, competitions and similar means:

what is permissible, what is not?

• In what circumstances is consent deemed? In what circumstances must consent be explicitly sought?

• Differences between businesses operating in regulated and non-regulated environments: do different industries

have varying standards of what is and isn’t acceptable?

• How best to use this important asset: latest requirements, prohibitions and industry norms on the use of customer data

• In what situations and under what conditions can you transfer it to third parties?

• Obtaining consent from under-18s and other vulnerable groups • What to watch out for and consent requirements for using

celebrity images

 11.15 Least Intrusive Methods for Ensuring Compliance with the EU Cookies Directive

Dave Evans, Group Manager – Business and Industry, UK Information Commissioner’s Office

 Townsend Feehan

Legal & Corporate Affairs, Microsoft EMEA

Iain Stansfield, Partner, Olswang LLP

• Overview of new legal provisions due to be effective March 2012

• Experience of industry during the grace period lessons and learned

The new law in operation:• What will be the practical impact of the law coming into effect on the expiry of the on-going grace period? In what circumstances will the use of cookies be allowed?

• What it meant by “specific consents” under the new laws?

Is updating browser settings sufficient and in what situations would further steps be required? What types of cookies

require specific agreement of the customer vs generic once-and-for-all agreement?

• What constitutes a cookie today: Is the Facebook “like” button a cookie? How far reaching is the decision of a North German data protection authority that answered in the affirmative?

• What are the least intrusive methods of obtaining consents required in various situations: striking a balance between

achieving compliance and not turning every internet experience into a box-ticking exercise

• ICO guidance and updates on any cases under the new laws

 12.30 Networking Lunch

1.45 Social Networking Platforms, Mobile Technology Providers and Major Advertisers Speak: Maximizing the Benefits, Reducing Risks and Ensuring Compliance With the Law When Advertising Through New Media

Jamie Barnard, Global Digital Legal Counsel, Unilever plc

 Jonathan Dunne, Legal and Business Affairs, Warner Bros. Entertainment Europe

 Sara Zanoni, Senior Legal Counsel, Hutchinson 3G UK Ltd

• Current rules and requirements for running campaigns on Facebook, Twitter and YouTube: recent rule changes

and the big dos and don’ts

• Examples of common pitfalls and trouble stops encountered by advertisers

• How do platforms and mobile operators monitor content what is their responsibility for it and what are their take

down policies?

• Recent examples of innovative social networking advertising methods made available to businesses

• Tips for managing a crisis in social media.

• Specific considerations for advertising through mobile/apps prevailing market best practice − for direct marketing

and required consent thresholds

− should terms and conditions be communicated in a shorter form in order to be valid?

• Is there a right of reply for the advertiser through social media networks and consumer blogs?

• What are the risks associated with UGC in ad campaigns and how do you mitigate them?

• What does the future hold for mobile marketing?

 3.30 Afternoon Refreshments

3.45 Factors to Consider When Successfully Implementing Managing and Staying Legally Compliant in Ad Campaigns Across Europe and Beyond

Elisabeth Puistienne, Associate General Counsel, Levi Strauss & Co

 Liam Collens, Legal Adviser/Advertising, Reckitt Benckiser Plc

• Compliance with local legal/regulatory requirements,

customs and language

-          who is in charge: appointment of a nd relationship with local counsel

− what channels of local knowledge are usually effective?

• In which areas are laws harmonized and what harmonization initiatives are afoot for the near future?

• Different European approaches and attitudes to online marketing, promotions and purchasing

• What are Europe’s more conservative markets and how so? Which advertising methods are they receptive to and what

are no-go areas? What are the lower risk markets?

• When to opt for a global vs regional vs local campaign: factors that should shape your decision

• Advertising claims and copy that travel well across localities

• Asserting and managing copyright, trademarks and publicity rights both regionally and globally

• Top-5 advertising trouble spots for the European/global in-house lawyer and best workarounds

 4.45 Capitalising on the New Generic Top Level Domain (gTLD) System: Who is Applying, Why and How Will it Impact Their Brands?

Mette Andersen, Director, Corporate Counsel LEGO Juris A/S

Dawn Hutton, Senior Solicitor, Brand Legal Team, Group Legal and Corporate Secretariat, Vodafone Group Services Limited

David Taylor, Partner, Hogan Lovells International LLP

• Overview of the gTLD process and the role/powers of gTLD providers as quasi-registries

• Application/objection process, status and take up

• Who is going to use gTLD and how? To what extent are applications being filed defensively?

• How can gTLD be exploited to its full potential in terms of brand owner benefit t?

• What main challenges are likely to arise in the use of the gTLD program and how do industry players plan to tackle these?

 5.45 Conference Adjourns

MAIN CONFERENCE - DAY 2 WEDNESDAY, 29TH FEBRUARY 2012

9.30 Morning Refreshments

10.10 Opening Remarks from Conference Chair

10.15 Using Location Based Services for Relevant

and Targeted Advertising: What’s Acceptable and What isn’t?

Nick Stringer, Director of Regulatory Affairs

Internet Advertising Bureau (IAB)

Gabriel H. Karp, Executive Vice President & General Counsel, ePrize

• Different channels of LBS currently available for use – Smart phone/ QR codes/ RFID/ Blue tooth messaging

• Are there any emerging best practices and norms for obtaining consent while using each of these channels?

• At what point of the process should consent be obtained in order to be meaningful and to allow the transaction to flow?

• Specific consideration for minors or vulnerable adults

• What is not acceptable: recent examples of when companies have got it wrong

• Future of the LBS industry: what moves are afoot to achieve self-regulation and what form will this take?

• What is the likelihood of regulators stepping in?

− plans to enhance consumer transparency, education

and control

− current views/guidance from the ICO, other European

data protection agencies and the European Union

11.15 How to Exploit the New Enabling Provisions for Advertising Your Brand Through Product Placement

John Miller, Commercial & Regulatory Lawyer, Channel 5

Amanda Russell, Head of Legal Affairs, Pact

Barry Matthews, Director of Legal Affairs, Commercial and Online, ITV plc

• Update on recent permissive changes to product placement regime

− implementation of the EU Audio Visual Media Services Directive in European States

− UK provisions

• How are advertisers making use of the new provisions?  What are the key opportunities, restrictions and what issues

have cropped up?(

• How does the law address product placement in the virtual world?

• Particular considerations for online pop ups

• What is the rationale for the varying standards in product placement rules for TV vs online? Are regulators likely

to adopt a more holistic view in months to come?

• Roles of parties involved and product placement contracts types of agreements entered i − nto by production companies

− split in costing between production company/broadcaster/agency

− who is best placed to monetise content – broadcaster or production company?

• Broadcaster insight as to product placement deals in practice so far

• The fi nal analysis: assessment of consumer perspective on product placement

12.15 Networking Lunch

1.30 Building in Recent Regulatory and Case Law Developments into Your Comparative Advertising Campaign and What To Do If a Competitor Steps Out of Line

Jeff Greenbaum, Managing Partner/Partner, Advertising, Marketing and Public Relations Group, Frankfurt Kurnit Klein & Selz

Ed Fallon, US Attorney – Marketing, Research in Motion Limited

Oliver Bray, RPC LLP

• A look at comparative advertising in the UK, the US,and around the world

• Case law updates from the ECJ and national courts and from the US, over the last 12-18 months

− L’Oreal SA vs Bellure

− Lidl vs Vierzon

− Kingspan vs Rockwool

• Latest guidance from the ASA and other regulatoryand self-regulatory bodies around the world

• What are the rules on comparative advertising in the EU?

Other varying rules, regulations and attitudes in different European states and the US.

• What substantiation is required for comparative claims? What are the different substantiation requirements in Europe and the US?

• Strategies for developing and using consumer perception studies.  • Strategies for challenging a competitor’s false comparative advertising campaign

• Dealing with comparative advertising issues in social media, including user generated content

 

2.15 Ensuring Your Promotions and Competitions are Lawful Both Nationally and Across Borders

Nick Hawkins, Head of Legislation Sports & Gambling Law, Spring Law

(Formerly Legal Director at Danoptra and Shadow Gambling Minister)

Peter Wilson, Partner, Memery Crystal LLP

• Can your promotion be classified as a lottery, a prize competition or gaming and why is the distinction important?

• How to ensure promotions are not regulated as a lottery: what are the key attributes of a regulated promotion?

• What are the varying European gambling law requirements which may impact on your cross-border promotion? Is there

a move in Brussels towards at least limited harmonization?

• Specific challenges for online promotional advertising, gaming and sweepstakes

• Online and text messaging public voting systems: ensuring fairness and abiding by recent case law requirements

• Enforcement attitudes to cross- promos between foreign and UK companies trying up to promote each other’s brands

 

3.00 Afternoon Refreshments

3.15 Recent Case Law Implications for Key Word Advertising through Google AdWords and Other Search Engine Services

Giles Crown, Partner, Lewis Silkin LLP

• ECJ’s decision in Interflora vs Marks & Spencer

− facts , background and status

− why is this decision considered ambiguous?

− implications of this case on the scope for an advertiser

to use a third party trademark to trigger an ad for alternative goods or services

• Other recent case updates and key implications

− Moét Hennessey Louis Vuitton LVMH

− Dr. Dov Klein’s case

− Trading Post Australia

• What precautions must now be exercised when selecting key words for advertising?

− current requirements applicable to advertisers when purchasing keywords identical to trademarks of competitors

− how can businesses ensure their ad words show close ties to their activities in the course of search engine optimization?

• What preventive steps can a brand owner take and what remedial actions are available?

For:

− trademark infringement

− unfair competition/consumer confusion

Against

− the competitor seeking to purchase your trademark as a key word

− search site offering trademarks for sale

• In what circumstances have companies been prevented from registering their ad words?

• Search engine advertising and competition law breaches :position of the European Commission and Europe’s key competition authorities

 

4.15 How to Avoid Liability While Gaining a Competitive Advantage Through Your Viral Advertising Campaign

Susan Barty, Partner, CMS Cameron McKenna

Drawing on her considerable experience in representing leading brands , the speaker will update the audience on what is permissible and what isn’t in this area, based on requirements of applicable EU Directives, laws implemented in the UK and other key European member states, latest ICO guidance and similar provisions elsewhere in Europe, as well as recent case law and regulatory decisions.

• Opt ins/opt outs

• General regulatory issues and small print

• Offensiveness and targeting

• Protesters, activists and hijackers

 

5.00 Conference Chair’s Closing Remarks and End of Conference

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Location:
The Rembrandt Hotel
London