MARKETING LAW & PRIVACY

MARKETING LAW & PRIVACY

Andrea Miglionico, ANDREA DE LUCA PICIONE, Ignazio Pinzuti Ansolini

Instructional goals

The purpose of this course is to examine the legal interaction between marketing rules and privacy as well as the regulatory aspects of consumer law and data protection. It aims to critically assess not only the law governing these relationships but also the different law-making processes. The main goal is to provide an overview of the legal and institutional foundations of marketing law. It covers issues such as unfair commercial practices, digital marketing services, distinctive signs, copyright law in marketing activities, e-commerce law, unfair competition and sponsorship agreements. The module also covers IP rights, thus analyzing the basic law of privacy. The course offers an analysis of marketing law governing solicited and unsolicited forms of intermediation and its relationship to public policy. Firstly, it identifies and examines the sources, scope and content of the substantive international law rules that determine market relationships and discusses their application in practice. Secondly, it explores from a theoretical and a practical perspective the role and policy goals of marketing law, focusing on the relationship between digital promotion (e.g., digitalisation of contracts, social network advertising, marketing competition, cyberspace) and consumer protection. This course is suitable for students interested in acquiring a thorough and deep understanding of international marketing law, as well as critically assessing the role and objectives of digital marketing strategies and their balancing against other regulatory interests. It also provides the theoretical and practical knowledge necessary for legal practitioners in the field and for those seeking to advice governmental bodies, private companies or civil society organizations on matters related to marketing law and digital services.

Intended learning outcomes

On the completion of the course, students will be able to: Knowledge and understanding identify the relevant sources of marketing law and their relationship to domestic legal systems; define the key principles and concepts of marketing law and their relevance to privacy and data protection; explain the role and objectives of marketing law in theory and in practice. Applying knowledge and understanding critically reflect on the existence of conflicting regulatory objectives of marketing law and their appropriate balancing. Making Judgements demonstrate a clear examination and critical analysis of the legal, economic and political issues involved in structures of global marketing and digital governance; critically assess the different approaches to the problems and issues raised and, where appropriate, to review critically the relationship of marketing law to privacy in this area. Communication Skills describe the relationship between the objectives of data protection on the one hand, and other regulatory interests of marketing law on the other. apply legal principles of marketing law and privacy and give advice about their application in practice. Learning Skills conduct research on marketing law in theory and in practice.

Course Contents

The course offers an analysis of marketing law governing solicited and unsolicited forms of intermediation and its relationship to public policy. Firstly, it identifies and examines the sources, scope and content of the substantive international law rules that determine market relationships and discusses their application in practice. Secondly, it explores from a theoretical and a practical perspective the role and policy goals of marketing law, focusing on the relationship between digital promotion (e.g., digitalisation of contracts, social network advertising, marketing competition, cyberspace) and consumer protection. This course is suitable for students interested in acquiring a thorough and deep understanding of international marketing law, as well as critically assessing the role and objectives of digital marketing strategies and their balancing against other regulatory interests. It also provides the theoretical and practical knowledge necessary for legal practitioners in the field and for those seeking to advice governmental bodies, private companies or civil society organisations on matters related to marketing law and digital services.

Reference Books

In order to cover all relevant issues on a very dynamic topic there is no single book that discusses all the topics in a current fashion. The reading materials (legislation, textbooks, journal articles, cases and newspaper articles) are available at Luiss e-library through online sources (OER, JSTOR, LexisNexis etc.). For each topic relevant journal articles will be provided as a main reference for class preparation through the course website. An indicative list of key textbooks, treatises and specialist books on Marketing Law and Privacy, which cover several of the subjects, include: The key textbooks for the course are: Andrew Murray, Information Technology Law: The Law and Society (4th edn., Oxford University Press 2019) Jeremy Harris Lipschultz, Social Media Communication. Concepts, Practices, Data, Law and Ethics (3rd edn., Routledge 2020) Charles F. Hofacker, Digital Marketing: Communicating, Selling and Connecting (Edward Elgar 2018) Manuale di Diritto Industriale (8th Edition), Adriano Vanzetti, Vincenzo di Cataldo (eds), Giuffrè Editore, Milano, 2018. Additional textbooks and journal articles are indicated under each week section.

Teaching Methods

- Fully asynchronous in which 6 hours are synchronous (online sessions) run by module convenors in order to provide feedback and comments to students. - TA lessons - Group work - Case Studies - Project Work

Assessment Method

The entire course module is assessed by a Power Point presentation which counts for 30%, which at least 10% to take place in presence (on campus). It is formed by the following components: acquisition (learning skills), investigation (research skills), and practice (knowledge through feedback received). The final exam will cover all topics of the module and it consists on an individual presentation (ppt). Continuous assessment in the form of group presentation, case study analysis, critical review of journal articles and active participation in class counts for 70%, which is formed by the following components: production (30% outcomes), collaboration (25%), discussion (15%). No mid-term exam is provided for this course. A marking rubric with details for each class of grade is available on the course webpage. All assignments, unless otherwise announced, MUST be submitted to the designated area of Canvas. Do not submit an assignment via email. Notify the instructor BEFORE an assignment is due if an urgent situation arises and you are unable to submit the assignment on time. Non attending students will only be evaluated via the final oral exam (30/30). Non attending students will not have to read any further reading materials, nor watch any further video, other than the ones already indicated in the course syllabus. Attendance to the synchronous sessions is mandatory as is the participation to the asynchronous activities.​ Only in case of serious justifiable personal matters students can put forward a request of exemption to the Program Directors. The request must be granted by the Program Directors at the beginning of the semester and will be valid for all courses in that session. Program Directors and the Faculty will define an alternative assessment modality for such exceptional cases.

Thesis assignment criteria

- Active attendance at the course; - Quality of the proposed issue for the thesis.

Week 1 Contenuto sessioni on line e on campus

Introduction to Marketing Law and Privacy Asynchonous Discuss how digital marketing strategies interact with consumer protection.  Identify theoretical and contextual knowledge to basic principles of law.  Define the meaning of marketing law and describe the link between marketing law and privacy.  E-tivities Interview to Guest Speaker Dr Vincent Smith on ‘Basic Principles of Marketing Law and Privacy’ Podcast on ‘Marketers and data privacy’ (https://www.axiapr.com/blog/podcast-episode-marketers-and-data-privacy-with-sharon-toerek) Links to an external site. Discussion forum Related Materials Andrew Murray, Information Technology Law: The Law and Society (4th edn., Oxford University Press 2019) Chapter 1. Lecture slides

Week 2 Contenuto sessioni on line e on campus

The Regulatory Framework: The US, UK and EU approach Asynchonous Discuss the regulatory approach to marketing law in various jurisdictions. Comment on the differences between hard law and soft law rules applied in marketing law and privacy. Analyse the regulatory policies and enforcement mechanisms of marketing law in the US, the UK and the EU. E-tivities - Video on ‘ What Is GDPR Regulations & To Whom Does It Apply?’Links to an external site. Minimize Video - Podcast on ‘US privacy laws most likely to be adopted and when’ (Privacy Paths - Privacy Laws & Business podcasts)Links to an external site. Links to an external site.- Discussion forum Related Materials Jeremy Harris Lipschultz, Social Media Communication. Concepts, Practices, Data, Law and Ethics (3rd edn., Routledge 2020) Chapter 9.

Week 3 Contenuto sessioni on line e on campus

Consumer Protection and Unfair Commercial Practices Asynchonous Define the concept of unfair commercial practices. Identify commercial practices which involve misleading marketing or advertising behaviors. Discuss the rules and enforcement on unfair commercial practices. E-tivities Interview to guest speaker on ‘Aggressive and banned commercial practices in marketing and advertising’. Blog on ‘Guideline on Commercial Advertising and Unfair Commercial Practices by Social Media Influencers’. Discussion forum Related Materials Ian Ayres & Matthew Funk, 'Marketing Privacy' (2003) 20 Yale Journal on Regulation 77.

Week 4 Contenuto sessioni on line e on campus

Digital Marketing Services and Contractual Obligations Asynchonous Define the concept of digital marketing services and the related legal aspects. Identify the legal risks of digital marketing services. Discuss the contractual obligations arising in delivering the digital marketing services. E-tivities Blog on ‘Legal Requirements for Social Media Managers’ (https://www.privacypolicies.com/blog/legal-requirements-social-media-managers/) Podcast on ‘How Marketers Need to Adapt in a Post-COVID Environment’ (https://www.bellarmine.edu/rubel-school-of-business/bellarmine-on-business-podcast/interview-with-dr-carla-childers/) Discussion forum Related Materials Charles F. Hofacker, Digital Marketing: Communicating, Selling and Connecting (Edward Elgar 2018) Chapters 1-2 and 5. Catherine M. Sharkey, ‘Products Liability in the Digital Age: Online Platforms as 'Cheapest Cost Avoiders' (2022) New York University Law and Economics Research Paper Series No. 22-17, available at: https://ssrn.com/abstract=4086977.

Week 5 Contenuto sessioni on line e on campus

Distinctive signs (Part 1) Asynchonous main aspects of the legislative framework concerning distinctive signs role and importance of distinctive signs for marketing activities main legal issues arising from the context of business marketing and related to distinctive signs. E-tivities M/C test Discussion Forum Related Material https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32017R1001 Links to an external site. Manuale di Diritto Industriale, (At least) Eight Edition, Adriano Vanzetti, Vincenzo di Cataldo, chapter II (§§10-24, 34-36). Only for Italian Speakers.

Week 6 Contenuto sessioni on line e on campus

Distinctive signs (Part 2) Asynchonous main rationales for protecting the distinctive signs  categories of  distinctive signs and related protection mechanisms  main issues concerning the utilization of trademarks in the digital market E-tivities M/C Test browsing case law websites Related Material https://www.inta.org/wp-content/uploads/public-files/resources/the-trademark-reporter-european-union-trademark-law/TMR_vol111_no2_a1_scourfield.pdfLinks to an external site. (Only Introductory Comments and Legal Texts)  https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32017R1001

Week 7 Contenuto sessioni on line e on campus

Copyright law in marketing activities Asynchonous main aspects of the legislative framework concerning copyright law; 2. relationships between copyright law and marketing activities; 3.main issues concerning the protection of copyright law in the digital market E-tivities M/C TEST Discussion Forum Related Material https://digital-strategy.ec.europa.eu/en/policies/copyright-legislationLinks to an external site. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3695839Links to an external site. https://eur-lex.europa.eu/eli/dir/2019/790/oj

Week 8 Contenuto sessioni on line e on campus

Unfair competition Asynchonous main aspects of the legislative framework concerning unfair competition; 2. main items concerning the carrying out of marketing activities and related compliance with the unfair competition regulations; 3.issues concerning unfair competition and digital market E-tivities M/C Test web researches Related Material https://ec.europa.eu/info/law/law-topic/consumer-protection-law/unfair-commercial-practices-law/unfair-commercial-practices-directive_enLinks to an external site. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32005L0029

Week 9 Contenuto sessioni on line e on campus

E-commerce law Asynchonous main aspects of the legislative framework concerning E-commerce law; main items related to the relationship between E-commerce regulation and marketing activities; relevant issues concerning the E-commerce activities in the digital market. E-tivities work groups power point presentation Related Material https://www.europarl.europa.eu/RegData/etudes/STUD/2020/652707/IPOL_STU(2020)652707_EN.pdfLinks to an external site. https://ssrn.com/abstract=3933675Links to an external site. Chapter 1: The rise of digital platforms (Report by the Australian Competition and Consumer Commission) https://www.accc.gov.au/system/files/Digital%20platforms%20inquiry%20-%20final%20report.pdf

Week 10 Contenuto sessioni on line e on campus

Sponsorship Agreements and Advertising Asynchonous main aspects of the relevant legislative framework of sponsorship agreements and advertising main items related to the relationship between sponsorship agreements, advertising and marketing activities relationship between sponsorship, advertising and fair/unfair competition E-tivities discussion forum recording Related Material https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3600866Links to an external site. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114Links to an external site. https://marketinglaw.osborneclarke.com/media-and-ip/a-legal-overview-of-sponsorship/Links to an external site. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3364251

Week 11 Contenuto sessioni on line e on campus

Privacy and Data Protection (Part 1) Asynchonous main aspects of the legislative framework concerning privacy and data protection (GDPR) main aspects concerning the protection of personal data in connection with marketing activities main issues related to the consumers’ protection in the digital market E-tivities M/C Tests Discussion Forum Related Material https://gdpr.eu/what-is-gdpr/Links to an external site. https://edps.europa.eu/data-protection/data-protection/legislation_enLinks to an external site. https://ssrn.com/abstract=3080322Links to an external site. (M. Flinck) https://edps.europa.eu/press-publications/press-news/blog/it-time-target-online-advertising_en

Week 12 Contenuto sessioni on line e on campus

Privacy and Data Protection (Part 2) Asynchonous main aspects of the legislative framework concerning privacy and data protection (GDPR) with particular regard to rights and faculties of the data subjects; main aspects concerning the protection of personal data in connection with marketing activities and internet summarize some specific items arising from recent judicial decisions on data protection. E-tivities M/C Tests Discussion Forum Related Material https://gdpr.eu/what-is-gdpr/Links to an external site. https://edps.europa.eu/data-protection/data-protection/legislation_en