DOJ reverses its 2011 Opinion, concludes Wire Act prohibitions “sweep beyond sports gambling”

By Timothy J Lowry, Jonathan D King, Richard P Flaggert and Joanna Sykes-Saavedra

This week, the United States Department of Justice, Office of Legal Counsel (the DOJ), published its long-awaited and updated guidance respecting the reach of the prohibitions of the Wire Act, 18 U.S.C. § 1084, via a Memorandum Opinion dated November 2, 2018.

The DOJ’s previous Memorandum Opinion on this subject matter adopted a narrower interpretation of the criminal statute in 2011, and the 2018 interpretation will likely trigger swift opposition, including litigation, from individual states and other participants in the industry. From multi-state agreements pooling liquidity to interstate eSports and fantasy offerings (and perhaps even traditional lottery products), the recent interpretation inevitably sets the stage for litigation in the face of a rapidly expanding i-gaming marketplace and challenges the rapid proliferation of such non-sport offerings in interstate commerce.

The central issue is whether the phrase “sporting event or contest” in Section 1084 qualifies all four of the Act’s prohibitions, as opposed to just one of the four prohibitions. The Wire Act contains two general clauses, with each clause prohibiting two different kinds of wire transmissions as follows:

Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined under this title or imprisoned not more than two years, or both.

18 U.S.C. § 1084(a) (emphasis added). The Department’s thorough analysis concludes, in short, that the qualifier “sporting event or contest” can only be read to modify the phrase it follows, and cannot “sweep[] both backwards and forwards to reach all four of section 1084(a)’s prohibitions … .” Said another way, DOJ interprets the first clause to prohibit anyone in the business of betting or wagering from knowingly using a “wire communication facility” to either (1) transmit bets or wagers or (2) to assist in the placement of bets or wagers “on any sporting event or contest[.]” DOJ reads the second clause of Section 1084 to disallow any person from transmitting wire communications that allow a recipient to “receive money or credit” either (3) “as a result of bets or wagers” or (4) “for information assisting in the placing of bets or wagers.”

Point being, the DOJ’s 2011 opinion concluded the phrase “sporting event or contest” qualified (1) through (4) above; whereas, the DOJ’s 2018 opinion now concludes the phrase “sporting event or contest” only qualifies (2) above, with (1), (3), and (4) above not being limited nor qualified by said phrase. Noting it “does not lightly depart from [its] precedents,” the DOJ submits its analysis sounds largely in traditional notions of statutory construction, textual evidence in prior decisions, as well as prior prosecutorial policies and congressional intent.

The DOJ also opines that the Unlawful Internet Gambling Enforcement Act (UIGEA), enacted in 2006, does not conflict with or modify the scope of the Wire Act (noting that the definition of “unlawful Internet gambling” only applies to UIGEA, and “simply does not affect what activities are lawful under the Wire Act”).

This new guidance from the DOJ regarding the scope of Section 1084(a)’s prohibitions has the practical effect of putting the world on notice that the 2011 opinion can no longer be relied upon by any actors in the industry; indeed, the 2018 opinion specifically states, “we do not believe that such reliance interests are sufficient to justify adherence to the 2011 opinion.” Recognizing the Wire Act does not require a predicate violation of state law to trigger criminal liability, the DOJ is clearly signaling its intent to weaponize the Wire Act’s prohibitions against those Internet-based gaming offerings that are of an interstate nature, regardless if the content is sporting or non-sporting based.

Because Section 1084 is a criminal statute, corporate boards and officers and directors alike cannot rely upon the business judgment rule as a shield from the statutory prohibitions; consequently, any and all organizations conducting gaming activities in interstate commerce will be forced to audit their operational activities and take safeguards to prevent unlawful activities and ensure strict compliance. While the Department has advised it will provide a 90-day grace period before commencing any enforcement activities, we anticipate companies will spend a significant amount of time and resources in the coming days to audit their operations, revise internal controls and operating procedures, and prepare for a more strict interpretation of Section 1084’s prohibitions in the coming years.

Learn more about this development by contacting any of the authors above.

____________________________________________________________________________________________

[1] The Wire Act 18 U.S.C. § 1084
[2] See In re Mastercard Int’l Inc. , 313 F.3d 257 (5th Cir. 2002)

[3] Professional and Amateur Sports Protection Act 28 U.S.C. § 3702
[4] See, e.g., New York Cent. & Hudson River R.R. Co. v. United States , 212 U.S. 481 (1909).
[5] See, e.g., Standard Oil Co. of Tex. v. United States , 307 F.2d. 120 (5th Cir. 1962).
[6] United States v. Dotterweich , 320 U.S. 277 (1943)
[7] See, e.g., United States v. Park , 421 U.S. 658 (1975).

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2019/01/doj-reverses-its-2011-opinion-concludes-wire-act-prohibitions-sweep-beyond-sports-gambling/

Gaming Team ranked tier 1 in Legal 500 Germany

By Dr. Michael Stulz-Herrnstadt, Dr. Kai Tumbrägel and Christoph Engelmann

DLA Piper’s gaming team is ranked tier 1 by Legal 500 in Germany 2019. Partners Dr. Michael Stulz-Herrnstadt and Dr. Kai Tumbrägel as well as Senior Associate Christoph Engelmann among others are highlighted by name.

The just recently published handbook outlines the following in the “Media” section: “The team at DLA Piper, comprising four partners, is ‘excessively competent and creative, thinks out of the box and can also go off the beaten track’.”

Legal 500 further mentions that the firm “together with Michael Stulz-Herrnstadt and Senior Associate Christoph Engelmann, is ‘one of the top addresses for gaming law in Germany'”.

This ranking is a great success – not only for the German gaming team but also for the international gaming group as well as the lawyers of the German IPT group, led by Prof. Dr. Stefan Engels. Without their collaboration this success would not have been possible. Counselling in the gaming and betting industries requires a complete expert knowledge of both national and international law in several areas, such as regulatory law, IP/IT law, media law, corporate law, tax law and administrative and civil litigation, which we offer through our global offices. Equally important are our national and international clients who reward the organization and quality of our practice by placing their commissions with us. Many thanks for this!

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2019/01/gaming-team-ranked-tier-1-in-legal-500-germany/

UK – New CMA guidance for influencers and commitments secured with particular individuals

By John Wilks, Claire Sng and Sophie Anim

Background

The UK’s Competition and Markets Authority announced yesterday, following its investigation (see our earlier article available here), that it has secured commitments from 16 social media influencers about how they post online (see link to CMA press release here). The influencers, including singer Rita Ora and model Alexa Chung, have agreed to clearly state if they are in a commercial relationship, or are receiving payment in kind, for any products that they endorse on their social media channels.

Reflecting on the formal pledge made by the 16 celebrities, Andrea Coscelli, Chief Executive of the CMA (a UK government department responsible inter alia for enforcing consumer legislation) noted that influencers have a “huge impact on what their fans decide to buy”. He stated “you should be able to tell as soon as you look at a post if there is some form of payment or reward involved..” and these steps by the CMA relay a salient message to brands and influencers that “they must be open and clear” in order to comply with consumer protection law.

The CMA has also published a new quick guide for influencers about how to be transparent with followers (see link here “Guidance”). This is the latest guidance provided during a long-running effort by national enforcers such as the ASA and CMA to clamp down on unclear influencer marketing and advertising practices and to assist them with understanding what they need to do to comply with the rules. See our earlier blog posts published in the last few months on this topic here and here.

While this latest guidance focuses on what influencers must do, it is clear from earlier guidance that the responsibility for compliant posts is shared between the influencer and the brand with which they are connected; so brands should also take note and update their influencer guidelines accordingly.

Read the rest of this entry »

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2019/01/uk-new-cma-guidance-for-influencers-and-commitments-secured-with-particular-individuals/

New set of rules on taxation for gambling sector in Romania

On 29 December 2018 the final form of the law introducing new taxes for the online gambling sector was published in the Official Gazette by Government Emergency Ordinance no. 114/2018 (“GEO no. 114/2018”). GEO no. 114/2018 entered into force on the same day.

1. New tax duties for the online sector

Article 53 of GEO no. 114/2018 provides that starting with 01 January 2019 the online gambling organizers are obliged to pay a monthly tax duty of 2% of the cashed-in participation fees.

The tax duty is calculated, declared and paid to the state budget until the 25th of the month following the one in which the participation fees are cashed-in.

The method of calculation of the tax duties provided in the previous paragraphs will be established via an order issued by the President of the National Office for Gambling (“NOG”). The method of declaration and payment will be established via an order issued by the President of the National Fiscal Agency.

2. Amendment of the gambling law

Article 58 of GEO no. 114/2018 provides that a new activity will be established within NOG in order to promote compliance with principles and measures regarding responsible gambling (the “Activity”). The Activity will be financed by annual contributions paid by each licensee as follows:

(i) organizers of online gambling (class 1 licensees) – EUR 5,000 per year;
(ii) legal persons that are providers of services related to gambling activities (class 2 licensees) – EUR 1,000 per year;
(iii) organizers of gambling activities that are state monopoly (class 3 licensees) – EUR 5,000;
(iv) organizers of traditional gambling activities (class 1 licensees) – EUR 1,000 per year.

The above contributions will follow the enforcement procedure provided by the Fiscal Procedure Code and will be enforced based on a notification issued by NOG that represents writ of execution.

As per article 92 of GEO no. 114/2018, in 30 days as of its entry into force, NOG will notify the economic operators that performed activities during the period 2015-2018 and that owed the contributions, in order to pay them. The economic operators should pay the contributions within 5 days as of the receipt of the notification.

Please note that the previous form of GEO no. 77/2009 (the Gambling Law) that was amended by GEO no. 114/2018 provided that a foundation of public interest promoting responsible gambling was supposed to be established, while the licensees were supposed to contribute to the fund administered by such foundation. Until the entry into force of GEO no. 114/2018 such foundation has not been established.

3. Potential issues related to the measures proposed by GEO no. 114/2018

GEO no. 114/2018 may raise issues of validity / constitutionality, especially on what concerns:

  • the difference between the fiscal regime applied to online and traditional organizers of games of chance, resulting from different taxes and different levels of contributions to the Activity;
  • potential retroactivity of the contribution to the Activity imposed to economic operators for the period 2015-2018;
  • potential taxation of the same revenues of the online organizers of games of chance twice, as they will simultaneously pay the license and authorization fees and the new tax of 2% of the participation fees;
  • potential issues of non-constitutionality resulting from the lack of predictability, transparency and proportionality of such tax duties;
  • potential issues of non-constitutionality resulting from the lack of urgency required from the Government in order to be entitled to adopt a GEO providing new tax duties (in fact the GEO no. 114/2018 lacks any specific motivation of the urgency in what concerns the regulations on the gambling sector).

Considering the potential issues above, GEO no. 114/2018 and subsequent acts adopted for its implementation (including NOG’s notifications or other tax decisions) may be subject to challenges (including for constitutionality review) before courts of law and/or the Constitutional Court or even subject to a preliminary question to ECJ.

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2019/01/new-set-of-rules-on-taxation-for-gambling-sector-in-romania/

Key dates set for coming into force of the new Audio-visual Media Services Directive

By Alastair Mackichan

On 28 November 2018, Directive (EU 2018/1808) (“New Directive“) revising the existing Audiovisual Media Services Directive (2010/13/EU) (“AVMSD“) was published in the Official Journal of the European Union. As such the key dates for when the New Directive comes into force and by when member states must transpose it into national legislation have been confirmed. These are as follows:

 

EVENT DATE
Directive EU/2018/1808 enters into force 18 December 2018
Transposition of Directive EU/2018/1808 into national legislation By 19 September 2020

The New Directive is likely to be implemented in the UK if, as is envisaged under the draft agreement on the withdrawal of the UK from the European Union (“Withdrawal Agreement“), there is a transition period post-Brexit (i.e. post 29 March 2019) until 31 December 2020. According to the provisions of the Withdrawal Agreement, most EU law (including as amended or supplemented) will continue to apply to the UK during the transition period, and most references to member states in EU law will include the UK.

By contrast, if the Withdrawal Agreement is not finalised and the UK government is unable to reach a Brexit deal by March 2019 (i.e. a ‘no deal’ scenario), then according to the Government’s technical notice on broadcasting and video-on-demand (published on 13 September 2018), the AVMSD and the New Directive will cease to apply in the UK, i.e. services under UK jurisdiction that broadcast into the EU would not be governed by the AVMSD or the New Directive unless the UK Government opted to implement these rules into UK law.

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2018/12/key-dates-set-for-coming-into-force-of-the-new-audio-visual-media-services-directive/

UK Advertising Code (Cap Code): Rules changes and further consultation on the use of data for marketing

By John Wilks, Claire Sng and Ella Castle

In the wake of GDPR, the UK’s Committee of Advertising Practice has amended the CAP Code to introduce new rules on the use of data for marketing. It has also launched a consultation on potential further rule changes relating to child marketing data and prizewinners.

BACKGROUND

As discussed in a recent blog post (see here), CAP has been considering its future regulation relating to use of data in marketing and advertising, following the entry into force of GDPR. As such, in May 2018, CAP suspended existing Code rules regulating data protection issues (Section 10 – Database practice; and Appendix 3 – Online behavioural advertising), and initiated a Consultation on the collection and use of data for marketing.

In its Regulatory Statement on the new rules (see here), CAP identified the following aspects of GDPR as being particularly relevant to advertising rules:

  • a new definition of personal data;
  • a more detailed definition of consent;
  • stricter requirements for offering online services to under 16s;
  • reference to direct marketing as a “legitimate interest” for processing data; and
  • (related to that) a right to object to processing for the purposes of direct marketing carried out on the basis of a “legitimate interest”.

CHANGES

The rule changes cover three key data protection issues:

1. Removing rules on “pure data protection matters”

Although CAP considers that responsible data processing is an “intrinsic part of marketing, especially in a digital age”, CAP has decided to remove the rules on pure data protection matters (for example, data security and transfers of data outside the EEA) on the basis these rules are “unlikely to attract an expectation of regulation by the UK’s advertising regulator”. This conclusion is supported by the fact the ASA receives a low level of complaints on such matters, with complainants much more likely to address their grievances to the UK’s data protection regulator the ICO. The removal of ASA jurisdiction in this area is to be welcomed – as Consultation respondents had noted, there is otherwise the potential for uncertainty arising from having two different regimes regulating this area.

2. Amending Section 10 (Database Practice) of the CAP Code to comply with the GDPR

The amendments to Section 10 reflect and align with the GDPR, for example reflecting key GDPR definitions and mirroring the Article 13 and 14 fair processing notice requirements. They also include confirmation around responsibility for compliance with data rules (while marketers are likely to be data controllers and so primarily responsible, others involved in sending marketing communications are also responsible – agencies beware!). In addition, there is a new rule requiring marketers to do everything reasonable to ensure anyone notified to them as dead is not contacted again.

Removing Appendix 3 (Online behavioural advertising) of the CAP Code

This Section is removed and online behavioural advertising is instead addressed under the general marketing-related data protection rules set out in Section 10.

CAP indicated in its Evaluation of Consultation Responses (see here) that it will have regard to relevant Information Commissioner Office (ICO) and industry guidance relating to online behavioural advertising.

IMPACT

These rule changes announced at the beginning of this month, have been introduced with immediate effect. However, the rules will be under review for a 12 month period and CAP has said the ASA aims to deal with issues informally for the first 6 months, i.e. there will be a grace period for advertisers to get used to the new approach.

CAP intends to use independent industry watchdog the Direct Marketing Commission (DMC) to provide advice in cases where “legitimate interest” is put forward as the basis for processing personal data for marketing communications. Additionally, CAP will refer matters to the ICO where an issue is particularly contentious and the outcome has the potential to affect widespread industry practice. Such a co-ordinated approach, like the updating of the Code to take account of GDPR more generally, is to be welcomed, so as to avoid uncertainty and inconsistency. While the ICO will doubtless continue to be the main point of call for data protection related complaints (and marketers will want to concern themselves primarily with compliance with GDPR and other privacy law rather than the CAP Code in relation to data processing matters), it is highly desirable given the ever-increasing importance of data in marketing and advertising that the CAP Code is consistent with and complements GDPR.

ON THE HORIZON

Further changes are expected in future months. As we reported in September (see here), in light of GDPR, CAP has been considering changes to the requirement to announce details of prize promotion winners (Rule 8.28.5 of the CAP Code). The ASA is not currently enforcing Rule 8.28.5, and has now opened a further consultation on this issue as well as the subject of using data in marketing to children which will close on 7 December 2018 (see here). As per our previous article, and given the changes that have already been announced following the implementation of the GDPR, it seems likely that the requirement to publish names of prize winners will not be reinstated following the conclusion of the consultation. In addition, those interested in data aspects of direct marketing may wish to respond to the ICO’s consultation on its Direct Marketing Code (see here); the closing date for that one is 24 December 2018.

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2018/11/uk-advertising-code-cap-code-rules-changes-and-further-consultation-on-the-use-of-data-for-marketing/

New UK Advertising Regulator 5 year Strategy focuses on Online Impact

By Claire Sng

Yesterday at a conference hosted by the UK advertising regulator, the ASA, billed as “The future of ad regulation”, the ASA announced its new 5 year plan entitled “More impact online”, with an ambition of making every UK ad responsible (see link here).

Reflecting on the change in landscape that has occurred, Guy Parker, Chief Executive of the ASA, who unveiled the new strategy, noted that despite only being within the ASA’s remit since 2011, online “advertiser-owned ” ads (e.g. ads on company websites and social media pages) account for over half of the ASA’s work and in 2017 around 88% of ads that were amended or withdrawn were online ads (in whole or in part).

The new strategy has 6 strands:

  1. People – putting people first and making sure regulation benefits everyone not just those that complain to the ASA; including using machine learning and data gathering to work out what peoples’ priorities are;
  2. Online – improving regulation, including by working with platforms. One example given at the conference was asking platforms to use their technology to remove misleading claims that have already been adjudged misleading by the ASA;
  3. Effectiveness – better prioritisation; exploring machine learning to improve regulation such as using algorithms to test claims being made by advertisers (an example given at the conference was to test whether a claim that no delivery charge applied to UK mainland deliveries was true if you entered a particular postcode into the advertiser’s website);
  4. Buy in – trying to improve engagement by online-only advertisers, retailers, SME businesses and influencers;
  5. Enforcement – focussing on improving how non-compliant ads are proactively identified and removed and improving sanctions. (There was no more detail provided about sanctions at the conference. The strategy paper talks about cooperation and use of technology, but it will be interesting to hear more details as the strategy starts to be implemented next year); and
  6. Independence – providing evidence based decisions.

Overall what is clear is that the ASA is aiming to embrace use of new technology, AI and machine based learning, both to support research and thought leadership but also to identify and tackle non-compliant ads in order to seek to provide online regulation that is fit for the future. Margot James, Minister of State for the Department for Digital, Culture, Media and Sport, was not able to be at the conference, but provided comments by video and this is something she picked up on; noting that in an age of a decline in trust and the current levels of consumption of digital, innovative thinking is what is needed.

In addition to the strategy, there were lively panel debates about protecting children online and about regulating new forms of advertising, both of which are important elements of the new strategy. In respect of these topics, the ASA wanted people’s thoughts on the following two questions:

  1. What do you think should be the ASA’s priority for regulating newer forms of advertising?
  2. What do you think should be the ASA’s priority for protecting children online?

If you have a view on these topics, I’m sure the ASA would welcome your thoughts.

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2018/11/new-uk-advertising-regulator-5-year-strategy-focuses-on-online-impact/

Australia – Navigating social media advertising

By Alexandra de Zwart, Valiant Warzecha and Peter Jones

Worldwide, there has been increased regulatory scrutiny of social media influencers, including the UK’s ASA guidance (see previous update by John Wilks and Claire Sng) and Competition and Markets Authority investigation, the European Commission’s ‘Behavioural Study on Advertising and Marketing Practices in Social Media’, and the recent crackdown by South Korea’s Fair Trade Commission.

This flurry of activity is a timely reminder for businesses operating in Australia to review their social media practices for compliance with the Australian Consumer Law (ACL) and the Australian National Advertising Association (ANAA) Code of Ethics. Below, we set out a number of considerations for operating and advertising on social media in Australia. Further, there is a clear direction from media and political avenues focusing on the online behaviour and presence of a number of Australian businesses.  Increasingly, a business’s online presence is not only a potential area of legal exposure but also an area where reputation risk needs to be managed to minimise the risk of broader brand damage.

Direct advertising

Features recently integrated into the Instagram platform now allow businesses to post information on their products with tags that embed pricing information, product feature descriptions and website links. These tags help the platform play a larger role in direct product marketing.

However, to the extent representations made in embedded tagging exceed – in terms of product characteristics – the characteristics that the product itself can reasonably support, there is a risk such representations could be considered false, misleading or deceptive. Under the ACL, businesses are precluded from making false statements or engaging in conduct in the course of trade and commerce that is, or is likely to, mislead or deceive ordinary consumers about the relevant product or service offering. Accordingly, businesses should ensure that all product information included in advertisements is accurate, can be fully supported, is regularly updated, and consistent across all advertising mediums, especially where social media posts link to websites.

Recent amendments to the ANAA Code of Ethics also require advertising and marketing communications to be ‘clearly distinguishable as such to the relevant audience’. Sponsored posts by ‘influencers’ should therefore disclose the sponsorship using either inbuilt ‘paid’ or ‘sponsored post’ descriptions or the hashtags ‘#ad’, ‘#spon’ or ‘#sponsored’, otherwise there is a risk consumers will be misled as to the authenticity of product reviews or endorsements. Where posts are not clearly marked as sponsored, businesses should assess whether disclosure obligations arise for their content by considering whether they have a reasonable degree of control over the material and whether the material draws the attention of the public in a manner calculated to promote the product.

Hashtags

‘Hashtags’ are a long standing feature that have been used to greatly improve traffic. However, they are increasingly being viewed as ‘conduct’ that is capable of enlivening the provisions of the ACL. Accordingly, businesses should ensure that their hashtags correlate with the product they are selling and would not lead consumers to form a mistaken belief about the product’s features.

Negative reviews

Adverse publicity is a fear many businesses have and, considering the potential for negative reviews to ‘go viral’, there is temptation to delete these posts. As a general rule, these reviews should not be removed as there is a risk of misleading consumers about the general body of the product reviews. Similarly, there are reputational risks associated with not responding to negative consumer comments in a balanced and fair way and this can often be more damaging than the initial review. With this in mind, businesses should establish clear ‘house rules’ that apply to posts on social media pages, and these should be prominently featured on the business’s social media pages. In other words, there is an element here of “if you live by the sword, you – may – die by the sword”.

“Micro influencers”

In recent times, businesses have questioned the value of “celebrity” social media influencers, such as elite athletes, who charge exorbitant sums for a single post. Instead, these businesses are favouring partnerships with “micro influencers”, such as amateur athletes or professional athletes in more obscure sports (i.e. base-jumping or motocross) as a more cost effective marketing strategy, particularly where there is an engaged social media base.

A “micro influencer” is a social media user with between 1,000 to 90,000 followers who makes posts promoting products.  Their key advantages include use of products out of real loyalty to a brand (in some cases), smaller and more intimate followings that share a uniting passion for a particular sport, person or subject matter and, as a result, followers perceive the influencer’s endorsements as being more genuine.  “Micro influencers” also require much lower remuneration, if any, and exist in greater abundance than “celebrity influencers”, meaning they can generate content at a scale that captures more market segments.

It has become common practice for businesses to send “micro influencers” free products and/or pay nominal amounts in return for an Instagram post or YouTube review of a product.  However, whilst these “micro influencers” present enormous return on investment potential, there are significant legal and reputational risks involved with using less sophisticated influencers.  Accordingly, businesses should ensure that “micro influencers” are made aware of obligations:

  • under the ANAA Code of Ethics and ACL to clearly indicate that their content is sponsored;
  • to not improperly use the business’s intellectual property such as trade marks, or infringe any third party rights; and
  • to comply with social media policies to ensure that any posted content is not taken down by platform moderators.

To ensure compliance and risk mitigation, businesses should actively monitor content they have sponsored and request corrections if necessary.

There have also been reported instances of children being used as “micro-influencers”. This is a particularly nuanced and potentially dangerous area in which business may wade. As a minimum step, businesses should confirm the capacity of the influencers and athletes to agree to relevant terms and conditions or that they take all reasonable steps to ensure parental consent is obtained before entering into any agreement if they are under the age of 18.

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2018/11/australia-navigating-social-media-advertising/

UK – new ASA guidance for influencers

By John Wilks & Claire Sng

Background

The ASA has this week published new guidance for influencers about how to make their ads clear (see link here “Guidance”). This Guidance follows the ASA’s call for evidence in March 2018.

This is a hot topic at the moment with:

  • The European Commission having just published a report about the behaviour study it conducted on advertising and marketing practices in social media (see link here) (“EC Report”); and
  • The ongoing consumer enforcement investigation that was launched by the Competition and Markets Authority (CMA) over the summer relating to social media endorsements and the labelling of posts by social media influencers.

Read the rest of this entry »

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2018/10/uk-new-asa-guidance-for-influencers/

New rules for audiovisual media services approved by European Parliament

By Will Thorman

On Tuesday, 2 October 2018, the European Parliament voted to update rules on audiovisual media services, including the introduction of a quota on European content, stricter rules on advertising, and enhanced protection of children.

The revised legislation will apply to broadcasters, but also to video-on-demand and video-sharing platforms (including live streaming).

Providers of such audiovisual media services will have to:

  • ensure that at least 30% of their catalogues are made of up European content (although there are exemptions to this);
  • take appropriate measures against content inciting violence, hatred and terrorism, including reacting quickly when content is reported as harmful, and may even be required  to create effective mechanisms to allow users to report or such content;
  • comply with strict rules on broadcasting advertising and product placement in children’s TV programmes; and
  • ensure that personal data about children which they collect are not processed for commercial use.

The new legislation could also require such platforms to help finance European films and TV, either by investing directly in content or by contributing to national funds.

Next steps

The legislation still needs to be formally approved by the European Council before it comes in to force, and Member States will then have 21 months to incorporate the new rules into national legislation.

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2018/10/new-rules-for-audiovisual-media-services-approved-by-european-parliament/

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