SMX East: How to Handle Government Pushback on Digital Marketing

By Jessica Davidson | Oct 3, 2012
More Articles by Jessica


As a marketer, I often get overwhelmed at the sight or sound of legalese. But, working in the online realm, it is imperative to fight through the confusion of technical legal jargon and understand the current and potential legislation that could impact our marketing actions.  In this session, David Mink, Jud Soderborg, and Tony Wright offer insight in order to navigate successfully though the potential legislation, like “Do Not Track,” and the legal issues facing social media.

Tony Wright, CEO, WrightIMC (@tonynwright)

Tony Wright examined the impact that proposed legislation like “Do Not Track” could have on the search engine marketing industry and what needs to happen in order to deter the potential impact. Wright offered some of the worst case scenarios if the legislation is enacted:

  • No more Analytics
  • Government takedown of your website for noncompliance
  • Corporate controlled bandwidth
  • Fines for incorrectly labeled advertising
  • Sales tax on e-commerce – This is already being to happen as seen in case of Amazon who imposed a sales tax in Texas and California on online transactions
  • Sales tax on previously performed search engine marketing services – Texas was contemplating implementation of a retroactive sales tax on SEO services performed
  • In the most apocalyptic view, it’s the end of the internet as we know it!

With the threat of “Do Not Track” looming, not much appears to be done by search engine marketers who would be directly impacted by the legislation’s enactment. SEMPO and  some search engine marketing leaders have taken some initiative to lobby against potential legislation, but for the most part no organized effort has been taken. Why is this the case?

  • No clear, coherent voice for search marketers
  • Search marketers don’t have the deep pockets for lobbying
  • The interests of the industry often doesn’t align with those who can afford lobbying efforts

Wright proposes what we as an industry should attempt in order to fight the legislation:

  • Some person or group needs to make these issues a priority
  • Search marketers need to put their money where their mouth is
  • Consensus & compromise from the industry
  • Obtain an in at the Internet Association (a new trade association backed by Google, Facebook, eBay, Amazon, and other industry leaders)

Jud Soderborg, SEO Director, Catalyst Online (@judsoder)

Jud Soderborg offers insight as to what marketers can expect from tracking laws as well as what we should do to navigate through the laws impacting the industry.

What is the law regarding tracking cookies?

Laws involving tracking cookies have not really been established in the United States due to the fact that it is difficult to prosecute violators because those harmed by the tracking cookies must show damages.

Additionally, it is difficult to mandate tracking and cookie laws at the federal and the state level because the internet is global and people from different countries, regions, and states can access websites from others, making it extremely difficult to regulate if legislature differs.

What can internet marketers do to protect themselves?

In order to avoid any legal troubles regarding the violation of any future tracking laws, marketers should do the following:

  • Create a privacy policy that is clear, easy to find, and easy to read.
  • Check out your advertisers – do the tracking methods they utilize conform to your privacy policy?
  • Determine whether or not your site’s visitors continue to be tracked after they subsequently delete their cookies.

David Mink, Co-Founder & Chief Legal, Avalaunch Media (@dmmink)

David Mink strayed away from the potential “Do Not Track” legislation and focused his discussion on the legal issues involving social media. He offered a couple of situations, of which the room was split over regarding their legal ramifications, noting the lack of concise knowledge we as marketers have about the legal aspects of the environment we work in.

Can you be fired over a like on Facebook?

Mink presented a case in which a sheriff fired a couple of his employees after they liked the page of the opponent who was running against him for sheriff. Although we live in a country that promotes free speech, the courts believed that act of liking something on Facebook is not a substantial statement that warrants constitutional protection.

Is it legal for employers to require employees to provide their usernames & passwords for their personal social media accounts?

Only four states (Maryland, Delaware, Illinois, and California) have enacted legislation to prohibit this event from occurring, but many states are beginning to move in this direction.

The main takeaway from David’s presentation is that it is IMPERATIVE for employers to create an internet and social media policy that is clear as to who owns the social media account and outlines the distinctions between personal and professional social media accounts. Also, such a policy needs to be specific to your company and industry due to the various laws and regulations impacting it.

Stay tuned for more blogging from SMX East (#smx). Find me on Twitter or Google+.

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