Marketinglaw update | May 2017

Welcome to your May 2017 update from, with analysis of – amongst other things – recent data privacy developments in advertising, cases on small print and comparative advertising, a case on use of the word “natural” in food ads, new developments on affiliate marketing and a regulatory ruling highlighting the dangers of referencing “sexting” in ads.

My favourite piece this month is from Italy, via New York – on how the sponsored “Fearless Girl” bronze on Wall Street has led to legal challenge because of its effect on – and reliance on – Arturo Di Modica’s famous “Charging Bull”.

We’d love to know what you like – or don’t like – about our updates. Any feedback would be much appreciated! And if you would like to discuss any of the content in this update, please contact me or the author of the relevant story.

Best regards,

Nick Johnson

Latest news

Advertising Regulation [UK] The ASA and CAP 2016 Annual Report The ASA’s and CAP’s 2016 annual report highlights their achievements and challenges in adapting to the increasingly interconnected world. Marie-Claire Smith reports.

Data & Privacy [UK] Profiling under the GDPR: potential implications for advertising and marketing The ICO recently asked for feedback on the profiling provisions of the GDPR. We look at just one of the key questions which needs answering in relation to profiling, and what the ICO has said so far. Georgina Graham reports.

Advertising Regulation [UK] 10,000 views required before YouTubers can start to make ad money In a policy aimed at cracking down on copyright infringement, YouTube now require their channels to hit 10,000 views before ads on them can be served. Jennifer Richardson reports.

Privacy [UK] Art 29 WP publishes opinion on the draft e-Privacy Regulation. Whilst the Art 29 WP generally welcomed the proposal, it still found room for improvement. Peter Barratt reports.

Advertising Regulation [UK] Dame Janet Paraskeva publishes report on ASA On 7 April, the ASA published Dame Janet Paraskeva’s report “Independent Audit of the ASA’s Commitment to Good Regulation”, along with its initial response to the report – but will this lead to changes to ASA practice and procedures? Daisy Jones reports.

Advertising Regulation [UK] CJEU rules on trader information requirements for press ads Do the name and address of the trader need to be shown on limited space ads? The CJEU has given its view, and Ben Dunham reports.

Advertising Regulation [IT] The Fearless Girl who challenges the Charging Bull Arturo Di Modica claimed installation of the “Fearless Girl” sculpture facing his Wall Street symbol turns the Charging Bull’s intended ‘positive, optimistic’ message into a ‘threat’. Riccardo Gaiani and Marialaura Boni reports.

Advertising Regulation [UK] Normalisation of sexting: Kaspersky’s ad is criticised by the ASA and the NSPCC The ASA upholds complaints raised about Kaspersky’s latest ad for normalising “sexting”. George Garrard reports.

Advertising Regulation [FR] The French Conseil d’Etat says ‘non’ to JC Decaux and deals the final blow to its plan for a pedestrian tracking system on advertising panels. The French Conseil d’Etat ruled against JCDecaux’ plans to set-up a WiFi system on advertising panels to collect data from mobile phones of pedestrians passing by in Paris’ business District La Défense. Chloe Dumoulin-Richet reports.

Advertising Regulation [FR] Comparative advertising and denigration lead to unfair competition claim Paris Court of appeal finds the Pin guilty of unfair competition by taking unfair advantage of the fame of Coty’s fragrances and denigrating its competitors. Margaux Hammer reports.


Advertising Regulation [UK] Use of Term “Natural” When Advertising Food / Drinks Products Katie Vickery and Claire Temple look at a recent ruling by the ASA, and useful clarification, on the use of the term “natural” by Appy Food & Drinks Ltd (“Appy”) when describing their range of fruit juice drinks for children. Katie and Claire report.

Advertising Regulation [UK] CAP Affiliate Marketing guidance CAP issues new guidance regarding online affiliate marketing. Jude King reports.

Advertising Regulation [UK]  ASA blogger ruling sheds light on “control” definition  Were makeup blogger Sheikbeauty’s social media posts sufficiently under the control of advertiser Flat Tummy Tea to be considered “marketing communications”, even though the advertiser did not provide specific wording or copy? Nick Johnson reports.

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