New Tech Requires New Analysis of Important Legal Issues

by Richard S. Eisert and Celia R. Muller

This is Part I of a blog series on Davis & Gilbert’s recent report, “Advertising Law: 2013 Lessons Learned & 2014 Practical Advice,” which explores the significant changes in the law relating to advertising, marketing and promotions in 2013, and suggestions for advertisers and agencies to think about and address in 2014.

During 2013, as in recent years, the advertising industry explored new tactics and tools, and there was an exponential increase in the complexity and variety of technologies being used and the issues they present. In particular, discussion last year focused on the expansion of the digital advertising ecosystem and new relationships between advertising modes, technologies and platforms.

Programmatic advertising, including real time bidding and other algorithm-based buying or selling, presented new issues in connection with both specific mechanics (e.g., pixel placement) and general operation (e.g., building in appropriate safety valves to address excess buying and to better ensure buys meet advertiser specifications and requirements). Connections between programmatic ads and “big data” also introduced further complexities, as new technologies collect and transmit consumer data through previously unexplored pathways.

Intersections between content and ads and between digital and real realms also brought increased attention to native advertising and the “Internet of Things.” No concerted action has been taken yet with respect to the “Internet of Things,” but tactics such as the collection of geo-located data through linked devices have begun to implicate privacy laws and issues addressed in 2013 by new guidance documents including the Digital Advertising Alliance’s Application of Self-Regulatory Principles to the Mobile Environment (the “Mobile Principles”).

As mobile devices and software have evolved, a variety of new advertising units and sophisticated advertising opportunities on mobile devices have become available.  Many of these opportunities raise privacy and data collection issues similar to those discussed above, and also may be covered by the new Mobile Principles.

Looking Ahead to 2014

Key issues and themes likely will include:

• New buying and selling modes that will require in-depth legal assessment to prevent contractual and regulatory issues.
• New methods of gathering data will raise novel privacy issues.
• The Mobile Principles, which thus far have been in an “implementation phase,” will move into an enforcement phase.
• The mobile environment, including more diverse, sophisticated and integrated advertising activities, will continue to develop and expand, along with new kinds of tools, data and targeting mechanisms.