Is your website or app potentially putting you at risk?

Panelist: Gayla Huber Integrishield, Michael Cordova Zero Parallel Kemberlar Smith, LDF Holdings

Now more than ever with social distancing standards, the reliance on devices for connectivity increases the need for websites and apps to be compliant with all current laws and regulations. One website compliance area that many companies struggle is the Americans with Disabilities Act (ADA). In 2019 alone there were 2,235 lawsuits filed against business with websites or apps that allegedly violated the ADA. This break out session will review the federal standards for website compliance with a focus on the Americans with Disabilities Act to provide a deeper dive into what ADA website compliance means, why it matter and steps you can take to make sure your website is in compliance.

1. Affiliate Marketing a. Affiliate Management b. Web/Paid Search Monitoring c. Compliance Best Practices d. Future of Affiliate Marketing

2. Email Marketing a. Publisher and Affiliate Management b. Monitoring c. Compliance Best Practices d. Future of Email Marketing

3. ADA Web Compliance a. Overview of accessibility requirements b. Common missteps c. Start getting compliant

Is your online marketing potentially putting you at risk.

July 20, 2020

Kemberlar Smith, Director of Compliance, LDF Holdings

Michael Cordova, General Counsel, Zero Parallel

Gayla Huber, President, IntegriShield

Presenters

Outline

• Marketing Compliance• Types of Online Marketing• Disclosures• Protecting Consumers’ Privacy Online• The CAN-SPAM Act• How to Ensure Compliancy with Online Marketing and Advertising

• Affiliate Marketing• Affiliate Management• Web/Paid Search Monitoring• Compliance Best Practices• Future of Affiliate Marketing

• ADA Website Accessibility• Overview of accessibility requirements• Common violations• Start getting compliant

Message from the Federal Trade Commission:

The Internet connects marketers to customers across the country and around the world. If you advertise online, remember the rules and guidelines that protect consumers also help businesses by maintaining the credibility of the Internet as a marketing medium. In addition, truth-in-advertising standards apply if you sell computers, software, apps, or other products or services.

Types of Online Marketing:

• Search Engine Optimization (SEO)

• Content Marketing

• Social Media Marketing

• Pay Per Click Advertsing (PPC)

• Affiliate Marketing

• Email/ Text Messaging Marketing

• Direct Mail Marketing

Disclosure of Full Details

• Telling only half the truth will always come back to haunt you. Be upfront from the start and provide your consumers with full

disclosure details of the offer.

• Advertisers who don’t provide the full details in the form of a disclaimer are deceiving the consumer.

• The Federal Trade Commission Act allows the FTC to act in the interest of all consumers to prevent deceptive and unfair acts or

practices. In interpreting Section 5 of the Act, the Commission has determined that a representation, omission or practice is

deceptive if it is likely to:

• Mislead consumers and

• Affect consumers’ behavior or decisions about the product or service. In addition, an act or practice is unfair if the injury it

causes, or is likely to cause, is:

• Substantial

• Not outweighed by other benefits and

• Not reasonably avoidable.

Disclosure of Full Details

• The FTC Act prohibits unfair or deceptive advertising in any medium. That is, advertising must tell the truth and not mislead consumers. A

claim can be misleading if relevant information is left out or if the claim implies something that’s not true.

• Ensure that your marketing and advertising does not have any discriminatory undertones.

• For Example:

• Only lending in certain demographics

• Not lending to a certain class of people

• Do not indicate any preference on the basis of race, color, religion, sex, disability, familial status or national origin.

• Remember, Ethics in Advertising means a set of well-defined principles which govern the ways of communication taking place

between the lenders and consumers. Ethics is the most important feature of the advertising industry.

• Online lenders must ensure that there is no unethical marketing practices being displayed within your organizations or with your

affiliates. This may include intentionally evoking rage or sadness to manipulate consumer decisions, using fear tactics, targeting

disadvantaged people or tricking customers into buying a product or service.

Disclosure of Risks

• Any product that poses a potential risk to a consumer, must clearly state the risks in all promotional materials including statements made

by spokespersons. In our lending industry, it very important that you disclose the following disclosure to the consumer:

• “This is an expensive form of borrowing. These loans are designed to assist you in meeting your short-term borrowing needs and not

intended to be a long-term financial solution.”

• It is recommended that this verbiage is clearly visible to the consumer and not hidden within other disclosures on your website page.

• WE must remember that some of our consumers are in desperate situations and getting a loan from our companies is their only

alternative. Please train all of your consumer/customer facing agents to ensure that are being compassionate with each individual’s

unique situation. Make sure that the customer understands the loan and disclosures.

Protecting Consumers’ Privacy Online

• Internet privacy is the privacy and security level of personal data published via the internet.

• The Internet provides unprecedented opportunities for the collection and sharing of information from and about consumers.

• Our personal information is a valuable commodity, it is not only the key to our financial identity, but it also our online identity.

• As lenders, we must ensure that we are going above and beyond when it comes to protecting our consumer’s personal and financial

information.

• Ensure that your company has an up to date Data Privacy and Security Policy in place.

• Make sure that your Privacy Policy is accurate and up to date.

• Ensure that employees are trained properly on how to handle consumer’s personal information.

• If you are working with a lead gen affiliate, make sure that they have proper privacy and security policy and procedures in place.

The CAN-SPAM Act

• Did you know the CAN-SPAM Act does more than just regulate annoying spam emails? It sets stringent rules for commercial email, with

tough penalties for violations (up to $16,000 worth). Not only can you not send emails through an open relay or harvested addressed,

but you also have to:

• Follow Unsubscribe/Opt-Out Rules. Like TCPA, under the CAN-SPAM Act, consumers have the right to request businesses to stop

emailing them. Your company emails should have a visible unsubscribe link or button. And not only must you honor opt-out

requests, but you also need to do so promptly within 10 days. So don’t delay, give the people what they want.

• Have Your Subject Line Reflect the Content. Have you ever opened an email expecting a coupon to the Sunglass Hut only to realize

you’ve been spammed by a pharmaceutical ad, or you have to keep clicking on different links to maybe eventually to the Sunglass

Hut ad? Yeah, not cool.

The CAN-SPAM Act

• Don’t use deceptive subject lines. If a consumer receives an email that says, “Apply for a low interest loan” and opens it to discover

an ad for Life Alert, you just deceived that consumer. And if the content is for 18 and older, it needs to have the correct labeling and

a safeguard to confirm the consumers age.

• Identify the Message as an Ad. Like with the disclosure of material relationships, make sure your email is clearly identifiable as an

ad. Don’t let your consumer think they’re getting a personal email from Britney Spears when really she’s hawking Cheetos and

Virginia Slims.

• Familiarize Yourself With Other Countries’ Compliance Rules. If you’re a global company, know the email compliance rules for the

countries you do business with. For instance, Canada requires the recipient’s full permission to even send an initial email to them.

• Legal Tip: Make sure your email subject lines reflect their content, offer an opt-out, and are clearly labeled sponsored content.

How to Ensure Compliancy with Online Marketing and Advertising

1. Website Audits

2. Web Crawls- Integrishield

3. Ban the use of Prohibited Words- OLA

4. UDAAP Compliance

5. Adherence to ALL Regulatory Agencies Rules and Responsibilities

6. Communication and training of your employees.

7. Up to date Marketing and Advertising policy and procedures

8. Second level review and approval of all marketing and advertising

9. Know and understand your Customers base.

10. If you are unsure of process, ask for help and guidance.

How to work with Affiliates Successfully and Compliantly

• What to look for in a Network:

• Good leads + clean leads

• Finding different avenues to make you locate good leads

• Methods to find good leads

How to work with Affiliates Successfully and Compliantly

• What to look for in a Network:

• What happens in a disaster

• Is their COVID plan

• Bus Continuity Plan

• Can they work remotely and deliver?

• Do they have the $ to endure the situation?

• Layoffs

• Location

• Look at their work structure and policies

How to work with Affiliates Successfully and Compliantly

• What to look for in a Network:

• Annual Reevaluation

• Look at contracts for what the current issues may exist

• Compliance review

• are they asking what you think they should ask?

• Next level questions to ask

How to work with Affiliates Successfully and Compliantly

• How to get set up w an Affiliate Marketing Network:

• Process/vetting

• Contracts – what to look for?

• Onboarding and annual questionnaire

Did you Know Websites Need to Have Wheelchair Ramps?

Americans with Disabilities Act (ADA)

• Title II & III requires ALL digital media to be accessible• III – “places of public accommodation”

How many ADA lawsuits filed in 2019?

Americans with Disabilities Act (ADA)

• Title II & III requires ALL digital media to be accessible• III – “places of public accommodation”

* https://www.hrdive.com/news/ada-title-iii-lawsuits-hit-another-all-time-high-in-2019/573393/#:~:text=2019%20was%20a%20record%2Dbreaking,%2C%20up%208.8%25%20from%202018.

More than 11,000 lawsuits filed in 2019*

States with highest numbers of lawsuits include CA, NY, FL

A Business Case for ADA

There are more than 61 Million disabled Americans*

Online businesses may lose about 20% of their consumers if they are not accessible

*https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html

Web Content

• What is web content?• It’s what the user experiences

• Web Sites• Mobile & Desktop Apps

• More specifically• Text• Images• Sounds• Videos• PDFs• Docs• Data• Animation

• ADA was passed in 1990 so it doesn’t have much to say on web accessibility

Web Accessibility

• What is web accessibility?

• Web Content Accessibility Guidelines (WCAG)

• Currently WCAG 2.1 but 2.2 first draft was published in

February

• Three possible levels – A, AA, AAA

• DOJ and cases generally require Level AA

• HTML Structure/Hierarchy

• Labeling (Form Fields, Images, Links)

Think Keyboard Navigation

Unplug your monitor and mouse and start browsing.

Web Accessibility

• Example Violations

• Coding that is not compatible with assistive technology like screen readers.

• Fields that are timed for response.

• Flashing images or text.

• Captions for audio

• Image descriptions

• Color used to convey information.

• Headers or labels out of order or missing to help navigate content on a page.

*https://www.natlawreview.com/article/when-good-sites-go-bad-growing-risk-website-accessibility-litigation

Web Accessibility

• Getting Started

• Add an Accessibility Statement to your website.

• Have your site audited if you don’t have an ADA developer internally.

• Remediate accessibility violations.

• Plan for regular and on-going monitoring, testing, auditing, and remediation.

• Include compliance with WCAG 2.1 as a requirement in vendor contracts.

*https://www.natlawreview.com/article/when-good-sites-go-bad-growing-risk-website-accessibility-litigation

Questions/Discussion

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