Legal Question in Technology Law in New York

Questions on Internet Advertising

New York

I am wondering if i have a software installed on users computers if i can legally replace banner ads that they view with my own for my advertisers instead?

my privacy policy would say ''we would make changes and enhancements to your browsing environment that enable a smoother and better experience including but not limited to changes in advertising, formatting and presentation etc.''

Also how much data can i legally collect about people and use to target advertsiing as i will have an extensive amount of user information in my database, what can/cant i use?

Could i use my databases to show users banners and if they click then send them an email from the same advertiser ?

Can i track users purchasing habits so i can directly target ads to that user?

If someone else sends spam, can i buy leads that have become optin but were generated via spam originally?

Please email me at if you can help.

Asked on 7/16/04, 2:51 am

2 Answers from Attorneys

John Friedman Law Office of John K. Friedman

Re: Questions on Internet Advertising

You must be extremely careful how you implement any changes to third-party content in any context. Tremendous liability can arise if you don't exercise proper care in what you propose. Several federal and state laws are implicated, as are general contract issues.

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Answered on 7/16/04, 10:14 am
William Frenkel Frenkel Sukhman LLP

Re: Questions on Internet Advertising

As a general matter, replacing banner ads without the users' express consent presents a host of problems. Relying on your privacy policy for installation of any software on thrid party computer or server is not going to cut it.

Collecting data about your website's customers/users/visitors is a different matter. In most U.S. states, your privacy policy will govern how you can use this data, assuming your users have agreed to the terms of use mandating such policy. In certain foreign jurisdictions (such as E.U.) this would not be sufficient, though. Tracking your users' purchasing habits (on your own site) is also generally governed by the privacy policy you have in place.

Sending emails to your own users (assuming they did not opt out) is generally permitted (subject to new state and federal (CAN-SPAM) anti-spam laws). However, your idea of sending emails from the banner advertisers rather than from yourself may be treated differently depending on the terms of use and privacy policy you have and disclosure to your users since there is no pre-existing relationship between such advertisers and your users. Again, various laws on unsolicited commercial email (UCE) should be reviewed to ensure compliance.

Finally, your question about buying leads from the people who opted in but were sent UCEs initially would probably turn on whether the original emails were lawful or unlawful. Simply sending UCEs is generally not necessarily a problem, it is the manner in which they are sent, their content, etc., that may make them unlawful. There are also ways to protect yourself contractually in dealing with mailing list dealers.

Please note that this reply is in the nature of general information, is not legal advice and should not be relied upon as such.

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Answered on 7/16/04, 11:06 am

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