Big Legal News for Marketers: Pinterest Warnings, GDPR, and Major Fines

legal news for marketers

By Kerry Gorgone, {grow} Contributing Columnist

The privacy crackdown has begun.

This week, Marriott and British Airways faced massive fines from the U.K. data protection authority the Information Commissioner’s Office [“ICO’] for violating the provisions of the General Data Protection Regulation [“GDPR’].

The ICO fined Marriott $124 million for the data breach that exposed 339 million guest records. British Airways was fined $228 million fine after the company leaked 500,000 customers’ personal data. Bear in mind, the ICO didn’t even impose the maximum penalty (4% of annual global revenue).

I recently wrote about developments in privacy law right here on this blog. Read up on what’s happening with data privacy protection and take the steps necessary to protect yourself from liability.

Legal news for marketers

If you haven’t reviewed the provisions of the GDPR, you need to. And bring your company’s data collection policies into compliance, because you absolutely can’t afford to wait any longer.

Make sure your data protection practices and policies are in compliance, and only work with vendors who do the same. Conduct an audit now to figure out what data you’re collecting and how you’re using it. Document your process for obtaining consent for data collection.

Compare what’s happening with what’s required under GDPR. If what you’re doing doesn’t satisfy legal requirements, it’s time to make changes. If the cost of doing an audit or updating your policies seems daunting, compare that cost with losing 4 percent of your annual revenue to a fine.

Safety “pins”

And privacy isn’t the only area that’s getting more complex for marketers. A federal court in Hawaii has ruled that re-pinning an image on Pinterest violates copyright law.

The court found bottled water company Hawaiian Springs liable for copyright infringement earlier this month. The company’s former marketing director had “re-pinned” a fake ad that college student Brea Aamoth created for a course project.

The mock-up incorporated a picture taken by photographer Vincent Khoury Tylor. He sued Hawaiian Springs for using the photograph in ads on Pinterest and Facebook.

Hawaiian Springs maintained that the college student’s use of the photo in a course project was “fair use” and, therefore, the company’s use of that image was also protected. The court rejected this argument, however, because the company used the image for advertising, a commercial purpose.

The copyright imperative

Like many companies, Hawaiian Springs used outside vendors to manage the brand’s social media. However, this did not absolve the company of responsibility for using someone else’s copyrighted work in their advertising. As the court pointed out, “a defendant’s knowledge or intent is irrelevant to their liability for copyright infringement.”

Copyright is about more than Pinterest or Facebook: any time you use someone else’s content without permission, you put your company at risk.

The stakes for marketers keep getting higher, so if this is new for you, check out our previous posts on copyright.

In the meantime, here are some tips for marketers who want to minimize risk:

1. Create your own content.

Smartphone cameras take incredibly high quality pictures and video, and professional audio is as simple as connecting a handheld mic to your iPhone. Go the extra step to create your own content.

2. If you want to use someone else’s content, get permission.

This sounds easy, but it involves making sure that the person who gives you permission actually owns the content! Third parties upload content to YouTube, Pinterest, Facebook, and other sites all over the web every day, in some cases claiming ownership.

Keep digging until you find the original source. Then, get written permission from the copyright owner before using their creative work in any of your marketing.

If you can’t verify that the original source actually owns the content you want to use, don’t use that content.

3. Get permission in advance

Encouraging people to submit photos, videos, or other creative work for a contest or promotion can be a great way to engage your audience, but protect yourself from copyright infringement claims up front.

Be sure that the rules clearly tell people that, by taking part in the promotion and submitting their creative work, they’re giving your company a royalty-free license to use the content for any and all purposes from now until the end of time.

Well, something like that. Consult an attorney to draft official rules.

4. Make sure that any agency or vendor you work with takes the law seriously.

When using third-party vendors and agencies for content (or for any part of your marketing process that involves the collection of data, for that matter), choose carefully. Select agencies and vendors that take legal compliance seriously, and supervise their work once they’re engaged.

If you’re not sure how to tell which vendors will keep you out of trouble, here are some questions to ask before hiring an agency or contracting with a CMS vendor.

“The wheels of justice turn slowly,” as they say, but law is beginning to catch up to marketing technology. Take steps now to minimize your exposure.

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also a Learning Designer at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast and gets people to open up about their cool collections, weird hobbies, and inspiring side hustles on The Punching Out Podcast with co-host Katie Robbert. Find Kerry on Twitter.

Illustration courtesy of Sang Hyun Cho from Pixabay.

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