Dangerous Liaisons: Mixing Personal Data and Web Habits for Lawyer Marketing


Posted in Blogs | Content Marketing | Email Newsletters

Privacy missteps can create crippling financial liabilities for a careless marketer. In the case of law firm marketers, the additional reputational fallout for being caught surreptitiously collecting and processing a client’s personal information could be catastrophic.

During last year’s LMA Philly 2016 Conference, one speaker threw out for consideration a “new” approach to automated online marketing.

It went something like this:

  1. A law firm sends email messages to clients and prospects that contain hyperlinks to the firm’s website content.
  2. The hyperlinks are coded in such a way that, when clicked, the link will take the user to the desired article and surreptitiously place a cookie on the user’s computer, thus allowing the law firm to associate a particular page view with the user’s email address and other personal information.
  3. With this data in hand, the firm creates a profile of the user based on his or her activity on the firm’s website.
  4. Armed with this valuable personal information, the firm can effectively market to the user by sending targeted follow-up email messages that reflect the user’s revealed interests.

No mention was made of a privacy policy, or of making a disclosure to the email recipient that clicking on a hyperlink in the email would allow the law firm marketer to collect information about the recipient’s activity on the firm’s website. Or of the fact that the law firm would be combining web usage with other personal information, storing it all in a database, and using that information for commercial purposes.

The reaction in the conference room was, roughly, “What a great idea.”

And I thought, “What a terrible idea.”

Therein lies the gap between marketers and lawyers.

Today, the Federal Trade Commission indicated where the federal government stands on this issue.

The FTC extracted a $2.2 million settlement from Vizio Inc., a television manufacturer that allegedly violated the FTC Act by selling television sets that tracked purchasers’ viewing habits without their informed consent. According to to the FTC, Vizio’s surreptitious tracking amounted to an unfair and deceptive trade practice, in violation of the FTC Act and New Jersey consumer protection laws.

From the FTC press statement:

The stipulated federal court order requires VIZIO to prominently disclose and obtain affirmative express consent for its data collection and sharing practices, and prohibits misrepresentations about the privacy, security, or confidentiality of consumer information they collect. It also requires the company to delete data collected before March 1, 2016, and to implement a comprehensive data privacy program and biennial assessments of that program.

The message here is clear. Personal privacy protections come into play whenever a marketer collects or processes personal information. Not only can privacy missteps create crippling financial liabilities for a careless marketer, but, in the case of law firm marketers, the additional reputational fallout for being caught surreptitiously collecting and processing a client’s personal information could be catastrophic.