Fross Zelnick On Protecting Brands In The Privacy Era

For more than half a century, Fross Zelnick has provided the world’s most recognized companies, luxury brands, celebrities, and start-ups with stellar intellectual property advice.

“Compliance with continually changing privacy laws should be an ongoing focus for all brands. Working with counsel can move companies toward aligning their legal and business frameworks in this challenging area.” – Amanda Agati

Fross Zelnick’s Data Privacy Group helps clients navigate a complex and evolving area of law. Deluxe Version spoke with group leaders Carole Klinger and Eric Gordon to discuss this focus.

Fross Zelnick traditionally focuses on intellectual property matters. Why add a data privacy Group?

Data privacy law poses real challenges for our clients. It’s an incredibly complex area of law, and clients were asking us for practical guidance in this area alongside traditional IP advice. This inspired us to form our Data Privacy Group.

Can you describe briefly what privacy law is all about?

Companies collect data online, often without our knowledge, and use it for many purposes, such as building detailed consumer profiles that may include where we’ve been online, places we’ve visited physically, our income, employment history, purchases, and so on. Consumers may be surprised by the amount of information businesses know about us.

While personalized advertising may in some instances be an innocuous goal of data collection, other, more disquieting purposes are often at play—for instance, profiling based on health conditions, family life, sexual orientation, ethnicity, or religion. Most people would prefer some control over their data and how it is used. Privacy laws set limits on how businesses collect, use, and share personal information and establish rights for consumers regarding their data. Privacy notices on websites are meant to inform consumers about these processes and rights.

Where does your Data Privacy Group enter the picture?

We help businesses understand and comply with the dizzying maze of privacy laws and advise them on how to avoid costly lawsuits and investigations from regulators or private individuals. We analyze how a client collects and processes consumer data and use that analysis to develop and enrich their privacy program.

How does data privacy relate to advertising and marketing issues, and what are the top concerns that you believe luxury brands should address to comply with privacy and related laws?

To personalize advertising, luxury brands often deploy online technologies, such as cookies or other trackers, to focus their campaigns on their current or prospective customers. How these technologies are used must be stated clearly in a website’s privacy notice and related disclosures. Regulators and plaintiffs put significant effort and resources into evaluating whether a company’s disclosures align with its practices, so ensuring accuracy, completeness, and transparency is critical. It’s imperative for luxury brands to get their marketing, IT, procurement, and legal departments working together on privacy compliance before they develop advertising campaigns, product launches, social media activities, or websites—any activity where personal information is collected and used.

Can’t a company use AI or a template to create its privacy notice?

It’s a bad idea—and an easy way for a company to find itself in trouble. A privacy notice is a company’s representation to consumers about how it processes personal data and must be customized to accurately reflect its data collection and
management. This requires a deep understanding of its approach across multiple departments. Many companies post an AI-generated or boilerplate one-size-fits-all privacy notice on their website without making the necessary refinements, which runs the risk of creating misrepresentations and potential exposure to financial and reputational loss. An ill-considered shortcut can turn into an expensive mistake that costs far more than creating a tailored, robust privacy notice.

Any advice for companies just starting to think about privacy compliance?

Dig deep and discover what customer data your company collects. Understand why you’re collecting it and what you’re doing with it. Then, work with qualified counsel to determine which laws apply to you and how to comply in a way that minimizes legal exposure while allowing for creative and effective marketing and advertising.

For luxury brands, compliance with privacy laws is essential to reduce legal and reputational risk while reinforcing consumer trust. It’s a balancing act between privacy and business needs, but it can be achieved with proper guidance.