Manatt Digital - July 2016

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

In This Issue:

  • Navigating Native: A Checklist of Compliance
  • Frontier Technologies in Marketing and Advertising

A message from our Chair:

We are pleased to bring you this month's newsletter as the first edition under our new brand—"Manatt Digital." Our new name, which replaces Manatt Digital Media, is reflective of our increasingly broadened scope of engagements across the spectrum of digital business, beyond digital media. The new name also coincides with Manatt's launch on July 1 of a new division of the firm called the media, technology and advertising division. The MTA brings together professionals from Manatt's entertainment and media, advertising, technology/fintech, global payments, regulatory and transactional practice areas to focus on the growing client base emerging from the convergence of content, media, technology, and private equity. To complement the legal professionals in the MTA, our consulting team from Manatt Digital also joins the division to allow for the full range of integrated professional services to be offered to our clients.

As reflective of our broader approach, this month's newsletter focuses on our advertising practice. The first article, written by Jesse Brody (partner), Lauren Aronson (counsel), and Suemyra Shah (associate), covers compliance issues related to native ads and steps that can be taken to ensure proper disclosure. The second, written by Mary Ermitanio (manager) in Manatt Digital's business strategy and consulting division, delves into frontier technologies and how they are being leveraged for marketing and advertising.

As we move to this next chapter for Manatt Digital, we are excited about the ever-expanding opportunities that are being created for our clients to reach their customers and stakeholders in new and different ways. We look forward to working with you to capitalize on these new opportunities, and we stand ready to assist you by providing insightful guidance to enable you to successfully implement your digital business strategies.

Hale Boggs
Chair, Manatt Digital

Navigating Native: A Checklist of Compliance

By Jesse Brody | Lauren Aronson | Suemyra Shah

At its root, native advertising was designed to be the solution to a problem that had plagued content platforms and brands looking to advertise online—consumers would click on traditional online ads, such as banners, only by accident. Thus, to increase the likelihood that consumers will willingly click on ads, publishers and marketers started creating content that doesn't outwardly look like advertising. Instead, native advertising borrows the look and feel of the surrounding media, blending editorial and commercial content, with the goal of providing value to consumers by enhancing their online experience while simultaneously increasing the visibility of brands. For example, marketers have created content by commissioning informational news articles, sponsoring BuzzFeed lists and creating tweets with content that is entertaining to consumers—hopefully generating enough interest to be shared across social media virally.

However, because the goal of native advertising is to distribute paid content that looks organic, there is an inherent tension in meeting marketers' goals of increasing brand visibility with content that provides an informational and/or entertainment value to consumers while also maintaining transparency. In other words, how do marketers create content that looks like organic content without "tricking" or "deceiving" consumers into unwittingly viewing ads? This tension has attracted the interest of regulators charged with ensuring consumers aren't misled into believing the ads are independent, impartial or not from the sponsoring advertiser itself. The reason why a native ad can be deceptive is that knowing the source of an ad or promotional message typically affects the weight and credibility consumers will give the ad, and such knowledge may also influence whether and to what extent a consumer will choose to interact with the message.

While native advertising has gotten a lot of buzz in the advertising industry, there has been a significant amount of confusion as to what it is and what advertisers need to do to ensure that their native ads are legally compliant. In order to address the ongoing uncertainty surrounding the disclosure requirements for native ads, on December 22, 2015, the Federal Trade Commission issued its long-awaited guidance on native advertising and published its Enforcement Policy Statement on Deceptively Formatted Advertisements and its Native Advertising: Guide for Business (FTC Native Ad Guide). Before we take a deeper dive into the disclosures recommended by the FTC Native Ad Guide, it's first helpful to understand the legal landscape in terms of what has guided disclosure requirements for native advertising prior to the release of the FTC Native Ad Guide.

Native Ad Legal Background

  • Interactive Advertising Bureau (IAB): In December 2013, the IAB addressed native advertising disclosures in its Native Advertising Playbook. In the playbook, the IAB explained that there's no single definition of native advertising "because, to a large extent, native is in the eye of the beholder, depending on where one sits in the ecosystem and the strategic and media objectives of the marketer." Rather than offer a cohesive definition, the IAB divided the native universe into types of native advertisements, ranging from custom content on Tumblr or BuzzFeed, to Taboola recommendation widgets, to promoted listings on eBay or Amazon, to custom blog posts, in an attempt to illustrate all of the possible iterations of native advertising. The playbook gave examples of commonly used disclosure language but didn't address specific recommendations for making effective disclosures other than providing a generic standard that "clarity and prominence of the disclosure is paramount," "the disclosure must use language that conveys that the advertising has been paid for" and "be large and visible enough for a consumer to notice it in the context of a given page and/or relative to the device that the ad is being viewed on." In July 2015, the IAB issued a "Deep Dive on In-Feed Ad Units" to supplement the playbook but still failed to provide specifics on proper disclosures for native ads.
  • Mobile Marketing Association (MMA): Similar to the IAB, the MMA weighed in on the native advertising discussion with its The Mobile Native Ad Formats guidebook. However, the MMA guidebook didn't provide any disclosure recommendations, nor did it provide any concrete guidance on how companies should disclose native advertising. It simply outlined the various formats through which native advertising can be presented on mobile devices.
  • Word of Mouth Marketing Association (WOMMA): In November 2014, the WOMMA released a "Don't Be Naïve About Native" white paper on how marketers should approach disclosures in native advertising. The white paper emphasized that disclosure and transparency must be prioritized when planning native advertising campaigns, and it provided substantive, practical recommendations with respect to disclosure obligations for various categories of native advertising and on different platforms using specific examples. Generally, the white paper noted that the use of disclosure tags such as "sponsored by," "presented by," "promoted by," and "ad" could more clearly drive audience expectation because they are the most prevalently used disclosures across platforms. The white paper recommended using visual cues to separate disclosures from editorial content but cautioned that symbols alone shouldn't be used to independently make disclosures unless and until they have been universally adopted. In the custom content category, it recommended that publishers place a disclosure and the marketer's name on every page that includes sponsored content and drives the audience to sponsored content. It further recommended that viewers be informed in advance if they are being redirected to a third-party marketer's site by clicking on a native advertising content link. With respect to advertorials, the white paper stated that many publishers effectively disclose such native content by using the label "ADVERTISEMENT" across the top of the advertorial. For paid search results on search engines (including search functionality in social media and publisher sites), the white paper recommended that marketers choose search engines that clearly identify paid results as "ads" and that create separation between organic and paid results. For recommendation widgets, the white paper stressed that it may not be eminently clear to audiences that sponsored links are paid for by marketers, especially given the title of widgets such as "YOU MAY LIKE" or "RECOMMENDED FOR YOU." While noting the great complexity associated with the execution of disclosures with recommendation widgets, the white paper stated that it would be ideal for the recommendation widget to clearly convey that "the link itself is sponsored and who the sponsor is" and "whether or not the linked content is owned by the marketer paying for the link."
  • American Society of Magazine Editors (ASME): On April 15, 2015, the ASME (the trade organization for magazine publishers) updated its Guidelines for Editors and Publishers to address native advertising disclosures. The ASME guidelines discussed the necessity for differentiating between editorial content and advertising content. With respect to addressing the issue of native ads in particular, the guidelines stated: "Regardless of platform or format, the difference between editorial content and marketing messages should be clear to the average reader. On websites populated by multiple sources of content, including user-generated content, aggregated content and marketer-provided content, editors and publishers must take special care to distinguish between editorial content and advertising. Advertisements that mimic the 'look and feel' of the print or digital publication in which they appear may deceive readers and should be avoided. Print and digital advertisements that resemble editorial content should be identified as advertising in compliance with FTC regulations." To ensure that such labeling is clear and conspicuous, the ASME recommended the use of terms such as "advertisement," "advertising" and "special advertising section" for print advertising units and further recommended that these terms be printed horizontally and centered at the top of each advertising unit in readable type. ASME also recommended that native advertising on websites and in social media be clearly labeled as advertising by using terms such as "sponsor content" or "paid post" and that collections of sponsored links be clearly labeled as advertising and visually separated from editorial content.
  • The National Advertising Division of the Council of Better Business Bureaus (NAD): The NAD is the self-regulatory body for the advertising industry and has taken an active role in addressing native advertising head-on. Before the FTC released guidance in late 2015, the NAD filled the void by bringing numerous challenges, primarily as part of its routine monitoring of the industry, and created a body of law to guide advertisers, with the goal of increasing transparency. These cases, drawing on the FTC's guidance on advertorials and infomercials, recommended that advertisers clearly and conspicuously disclose that native/sponsored content is actually advertising. The NAD has even taken the position that a disclosure is required "when the content does not mention a specific product or service ... [because] failing to disclose the sponsor of an article may deprive consumers of insight into why a particular article was published, including the motivations of the author." The NAD's cases have even prescribed appropriate placement of disclaimers, noting that consumers are less likely to notice and read disclaimers on the upper right-hand corner versus the upper left-hand corner of a webpage.

FTC's New Native Ad Guidelines

The FTC Native Ad Guide goes beyond simply reminding advertisers that commercial content must be identified as such. Instead, the FTC's newest guidance document reflects the FTC's view that consumers must be able to quickly and easily distinguish sponsored content from content that is independently created and produced. The guidance emphasized that consumers must know before they choose to view a native ad that the content is commercial in nature and that failure to clearly disclose the commercial nature is presumptively deceptive. Importantly, the guidance also provided detailed recommendations as to what those disclosures should be and how they must appear.

When Is a Disclosure Required

Whether a natively formatted advertisement must contain a disclosure identifying it as commercial content depends on how reasonable consumers would interpret the ad in a particular situation. However, the FTC identified only a couple of circumstances where disclosure likely would not be required:

  • Where it is inherently obvious that a natively formatted ad contains commercial content.
  • Where paid branded product placements appear in entertainment programming provided that (1) payment is unlikely to affect the consumer's decision to view the programming, and (2) no claim is made.
  • Before or after a consumer clicks on an article, even if the article is sponsored by a brand, if the article itself does not feature, depict or promote any of the brand's products.

Aside from these exceptions, the FTC Native Ad Guide takes a sweeping view of advertising and the accompanying disclosure requirements. As a general principle, the more a native ad has a similar appearance, format and topic to surrounding editorial content, the more likely a disclosure will be necessary.

Know the Platform

Whether a disclosure is necessary may vary depending on the platform on which the content will be distributed. While it may be obvious on some platforms that content is sponsored, consumers may be misled on other platforms or in other media.

It must be clear to consumers before they choose to view an ad that content is commercial. If you use a share feature to allow consumers to share your native ad, the accompanying link or image must make clear that the content is commercial. Likewise, where native articles appear in news feeds and in content recommendation widgets, publishers must disclose if the content is commercial. Further, the FTC clarified that links and other visual elements appearing in nonpaid search results must effectively disclose the commercial nature of content when the content appears to be editorial on its face. Paid dissemination of an independent article by a company may also require disclosure. Further, disclosures may be required for branded product placements in entertainment programming—including video games, apps, social media videos and television shows. Disclosure is required when objective claims or recommendations are made regarding a branded product and consumers wouldn't realize that sponsors have paid for product placement. Notably, the recommendations don't need to be express—a recommendation could be made simply by zooming in on the sponsored product if consumers are likely to interpret the use of the product to be a recommendation and not a paid inclusion.

How Should Advertisers Make Clear and Prominent Disclosures?

In the FTC Native Ad Guide, the FTC reiterated the basic principles of its 2013 guidance document, "Dot Com Disclosures: How to Make Effective Disclosures in Digital Advertising," which stated that "Advertisers have flexibility as to how to identify native ads, as long as consumers notice and process the disclosures and comprehend what they mean." However, the FTC Native Ad Guide also included very specific guidance for placement that deviates from current industry practice. Key recommendations include:

  • Pay attention to how consumers view content on the website or other online service. Disclosures need to be near the ad's focal point (e.g., in front of or above the headline or image). The FTC recommended that the disclaimer be placed close to the headline, on the left. Similarly, if native ads appear in a vertical stream of content items, the disclaimer should appear "immediately in front of or above a native ad's headline."
  • Don't assume that it will always be sufficient to place a disclaimer in a headline. On some platforms, the FTC noted that focal points are images or graphics, not headlines or other written text. The FTC recommended that the advertiser place a disclosure directly on the image itself (e.g., on a thumbnail of a sponsored video on platforms such as YouTube).

When native content is only a small part of larger content (for example, one small element of a video that is primarily independent of the advertiser), the disclaimer must appear as close as possible to the advertising message. The FTC noted that it may be "problematic" to make a disclosure too early in a video if, for example, the sponsored content is simply a video vignette or game shown partway through the video.

When native ads appear alongside editorial content, the native ads must be easily identifiable. The FTC recommended against using a single disclosure to identify multiple native ads. The advertiser should use individual disclosures or, if a single disclosure is used, the advertiser should also use other visual cues to make it obvious which items are native ads.

Advertisers must account for the effectiveness of disclosures when content is republished by others. The location of the disclosure may need to change, depending on how the content is shared. The FTC stated that links shared on social media or in e-mail should include a disclosure at the beginning of the native ad's URL. If the ad has audio, an audio disclosure is recommended. For video ads, the disclosure needs to remain on screen long enough to be read and understood, and may need to be repeated throughout longer programming.

Choose the Appropriate Disclosure

While the FTC thinks "ad," "advertisement," "sponsored advertising content" or similar terms are effective, it stated that the terms "promoted" or "promoted Stories" are too ambiguous and should be avoided. Furthermore, disclosures such as "presented by [X]," "brought to you by [X]," "promoted by [X]," or "sponsored by [X]" may be insufficient if the advertiser created or influenced the content. In such cases, consumers may falsely believe that the advertiser solely paid to publish the content.

When in Doubt, Disclose!

In sum, native advertising has generated a lot of buzz among advertising attorneys, marketers and regulators alike, and advertisers should exercise caution as they create and publish advertising that looks like unpaid, editorial content. With the FTC Native Ad Guide now in place, the FTC is clearly putting advertisers and publishers on notice as to what native ad practices may be deceptive, and giving companies involved in the digital media ecosystem the opportunity to modify their current methods to comply with the FTC's truth-in-advertising principles. We will likely see multiple enforcement actions in 2016 to further clarify the FTC's interpretation of its FTC Native Ad Guide. Here is a quick checklist of compliance recommendations so you can avoid having the FTC investigate whether your disclosure practices violate the FTC Native Ad Guide:

  • Be transparent. Content that promotes the benefits and attributes of goods and services should be clearly identifiable as advertising to consumers. Such promotional content is deceptive if it misleads readers "into believing it is independent, impartial, or not from the sponsoring advertiser itself." Even where content is clearly an ad once it's viewed, if the content is not also apparently an ad before it's viewed, then it must be clearly identified as an ad in a manner that enables consumers to understand that before they go on to view that content.
  • If a native advertisement appears in-line or in-feed with editorial content, advertisers must ensure that the native/sponsored content is easily distinguishable as advertising. In addition to labeling the content as an "ad," the FTC also recommended adding other cues such as background shading or a clear border as a differentiator.
  • Disclosures should remain when ad content is shared virally or republished. Many of the most popular social media sites today fail to continue to carry the sponsored disclosure after sponsored content is shared by a user. This is an area that may quickly become a battleground between content publishers and regulators.
  • For native articles, disclosures should be near, above or to the left of the story headline.
  • For native video ads, disclosures should be made in the ad itself and before a consumer receives the ad's message. On platforms using thumbnails—for example, YouTube—the FTC indicated that "ad" should appear on the thumbnail image for a sponsored video, not simply on the link. Also, when any kind of link is involved, the disclosure has to appear at least twice—once with the link and then a second time with the content.
  • Choose disclosures that are easily understood by consumers. The determination of which disclosure is most appropriate will need to be made on a case-by-case basis depending on the nature of the native content, how the content is presented to consumers and the platforms on which it appears.
  • The phrase "presented by" is appropriate to disclose that an advertiser paid a publisher to create and publish an article that may be of interest to its consumers where the article doesn't reference or promote the advertiser's products or services. There, the ad is the sponsorship, not the content. However, were the article to depict or discuss the advertiser's products or services, the article (or the applicable part of it) would need to be clearly and prominently disclosed as an advertisement. The placement of required disclosures will vary depending on the nature of the advertiser's involvement in the editorial content.
  • "More Content for You" and "From Around the Web," commonly used in recommendation widgets, don't sufficiently disclose that associated ad content is advertising and not independent editorial content.
  • If a paid product placement doesn't include or suggest objective claims about a product or service but does link to an ad (e.g., in an interactive game), that placement should be identified as an ad before the user clicks out to the ad.
  • The target audience should also be considered. For example, if the native ad will be targeted to children, you should consider whether the Children's Advertising Review Unit's Self-Regulatory Program For Children's Advertising Guidelines addressing "Blurring of Advertising and Editorial/Program Content" apply.

Frontier Technologies in Marketing and Advertising

By Mary Ermitanio

The marketing and advertising industry is under ongoing transformation, with shifting consumption habits and increasing ad avoidance by consumers. Not too long ago, the rise of social media shifted control of communication channels from the advertisers to the consumers and redefined the metrics for success (engagement over impressions). Today's frontier technologies will similarly usher marketers into a new era of advertising. Augmented and Virtual Reality, the Internet of Things and Artificial Intelligence are technologies that will fundamentally transform how brands engage with consumers.

Augmented and Virtual Reality

Augmented Reality (AR) and Virtual Reality (VR) have been around in some form or fashion for years. However, recent uptick in investments and significant advancements in technology are reviving global interest. While AR and VR provide different experiences, they both eliminate the restrictions that 2D screens place on content and communication and create a new kind of "user interface." With AR, digital content can now live in our physical world, and we can interact with each other in unprecedented ways. With VR, we can be immersed within digital worlds of information or entertainment, and share the experience with someone physically far away.

What does this mean for brand marketers?

AR and VR open opportunities for brands to create experiences that are fresh and that are more engaging. Many brands saw this early on and started experimenting with the technology, effectively driving the industry forward by bringing VR experiences to the masses. Dream cars in VR, and this has had a major impact on driving purchases, according to jaguar's head of communications. Supporting the creation of these experiences are the platforms and publishers that brands are already on, such as Snapchat, Facebook and Twitter, which deliver or plan to deliver AR experiences. With new types of experiences come new data sources. Eye-tracking technology can help marketers measure whether and how long someone looks at a product placed in a VR experience, or if, how long, and where someone engages with a physical ad or product in an AR experience. While VR can create more intimate experiences for users, brands have a higher risk of becoming more intrusive. As with other technological innovations, privacy is a significant area of concern that must be addressed.

Internet of Things

The Internet of Things (IoT) refers to sensors, devices and machines that are connected to the Internet and communicate with each other. Connected devices or machines are also referred to as "smart," with the most commonly used smart device being smart phones. As more devices go online—wearables, homes, cars and even city systems—massive volumes of data are generated. This enables the exchange of valuable information that can be used to personalize services and to reduce inefficiencies across an almost infinite number of applications.

What does this mean for brand marketers?

For smart devices that can communicate or share information with humans, the user interface typically involves screen displays. The proliferation of screens—whether on connected watches, connected cars or connected refrigerators—can create distribution opportunities for media, and the data analytics can help marketers learn about the users and ensure highly personalized campaigns. Mobile and Web channels currently provide advertisers with data such as location and previous browsing history, while social media platforms provide additional data sets, such as demographics and preferences. With IoT, information around the usage of a device—a device that can be very specific to a marketer's product—can now be within reach. For example, data from smart refrigerators can enable suggestions for items that need to be restocked. Each connected user device becomes a signal or data source that can help brands create higher-quality experiences.

It is important to note that these frontier technologies are not only transforming industries on their own, but are also converging to accelerate that transformation. If AR is layered on top of connected things, then human-device interaction is no longer limited to screens. Simply looking at your refrigerator (while wearing your AR glass) could give you the information you need. With AR and IoT, the billboards of the future can be a connected bus stop bench or any physical structure that displays information specific to the wearer of the AR glass.

Artificial Intelligence

AI refers to technologies that can complete tasks or solve problems usually performed by humans, including visual and speech recognition and winning a chess game. AI makes "smart" objects intelligent, enabling them to make decisions autonomously (e.g., self-driving cars). It also refers to the ability of machines to learn how to deal with variations of a situation ("machine learning"). Personal assistants such as Siri and other AI technologies are powered by the increasing volume of data generated by IoT, social media and our online consumption behaviors.

What does this mean for brand marketers?

Google, Amazon's Alexa, and Apple's Siri are powerful examples of how AI transforms how users are searching for and consuming information. When users can get answers to their questions through Siri, the ads placed on websites providing those same answers reach fewer people. Using its AI technology, IBM recently launched Watson Ads, a new kind of ad unit that will answer voice or text-based questions from users. This is not unlike the chatbots that Facebook has employed and that many brands have been experimenting with. Image recognition technology is also a data boon for marketers. For example, it can enable a Brand X to display an offer on my social feed if I post an image of me wearing Brand X. AI has myriad applications in the space, including optimized media buying, intelligent targeting of media, improved recommendation of content or products, predictive customer service, and content generation.

Across these technologies, perhaps the biggest driver of change in brand-consumer interactions will be the availability of new data sources and the use of more powerful analytics. While the regulatory and cultural hurdles cannot be ignored, these technologies create opportunities for both brands and consumers in the delivery of more personalized, relevant and engaging content and experiences. However, because the technological applications involve deeper integration into every facet of our lives, brand experiences must be crafted carefully, such that consumers welcome them instead of seeking out the next version of ad blockers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Manatt, Phelps & Phillips, LLP | Attorney Advertising

Written by:

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.