The Legal and Marketing Partnership

ANA Law & Public Policy Virtual Conference attendees: Scroll down for CLE materials

A panel of legal experts used some hypothetical examples to illustrate how legal advisors can assist marketers with valuable guidance.

Key Takeaways

The first hypothetical example shared by the panel involved a sunglasses company with a new app that allows users to virtually try on pairs of sunglasses. The experts explained that such a technology could run the risk of running afoul of Illinois' Biometric Information Privacy Act and similar legislation passed by other states, which construes a wide variety of data, including "facial scans," iris scans, and fingerprints as biometric information.

To protect the organization in such a situation, legal counsel should consider what kind of transparency needs to be offered and what kind of consent needs to be collected — especially if any information gathered from the user is going to be stored — as well as the special forms of consent that may need to be collected in the case of minors.

Legal counsel should similarly outline other potential risks that need to be guarded against, such as:

  • The collected data getting into the wrong hands
  • Legally questionable secondary uses to which the collected data might be applied, such as advertising purposes
  • Violating racial equity, e.g., if the technology doesn't work equally well for all groups

A second hypothetical example shared by the panel involved a plan to use a marketing platform to target a segment labeled "urban millennials." The experts pointed out that this approach, if "urban" is a euphemism for African Americans, could raise legal concerns about targeting protected classes.

Marketing products or services to protected classes that will lead to decisions about housing, employment, or credit is forbidden. The FTC is especially concerned with "digital red-lining," (Discriminatorily denying protected classes from services or opportunities through online marketing), especially when it involves financial products. Marketing, say, beauty products in the similar ways is less likely to be problematic.

Action Steps

  • As marketing plans are laid, involve legal up front.
  • Have diverse teams work on developing algorithms.
  • Stay abreast of academic research into bias, its causes, and how to redress them.
  • Conduct thorough risk assessments.
  • Consider PR implications of marketing decisions, not just legal ones.

CLE Materials

Source

"The Legal and Marketing Partnership." Keri Bruce, partner at Reed Smith LLP; Cassidy Sehgal, SVP, finance, chief data governance officer N.A., and associate general counsel at L'Oréal USA; Maneesha Mithal, partner at Wilson Sonsini Goodrich & Rosati. 2021 ANA One-Day Conference: Law and Public Policy, 4/27/22.

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