For many companies, a major piece of their marketing strategy now includes digital advertising. And while this offers an excellent tool for building a brand, there are a number of risks to consider.

This is where in-house counsel have a major role to play in protecting the company, according to panelists at the Association of Corporate Counsel's annual meeting in Washington, D.C., who were speaking in a personal capacity and were not expressing views on behalf of their respective companies.

“Advertising used to be very simple,” panelist Andrew Rausa, advertising and privacy counsel at Facebook Inc., said Monday. You had a brand that maybe contracted with an agency to design a commercial, for instance, and then contracted with a publisher, he said. “Since then, the landscape has gotten a lot more complex. There are additional companies that have come into this space, and the technology has certainly gotten more and more complex.”

To begin with, in-house counsel are critical when it comes to brand safety, Rausa said. “Brand safety is the concept of making sure the brands that companies have spent thousands, millions, maybe even billions of dollars [on] … aren't damaged; they aren't tarnished by putting those brands or advertisements next to unsavory content on the internet,” he said.

This means asking vendors for transparency, Rausa said, which could include requiring them to provide an exhaustive list of where a company's brand may show up, as well as a list of where it actually did show up and an outline of the remedies if those two don't line up. “And then finally, something to consider is, if you get called out, if you get that bad press … are they going to raise their hand? Are they going to say: 'Sorry, we were the ones that did it,' so that your brand doesn't get tarnished?”

The next consideration is making sure ads show up in the right place and to the right people, which inevitably means addressing privacy issues and regulations, Rausa said. In the U.S., the main regulator in this space is the Federal Trade Commission, he explained, adding that the primary way to “avoid the ire of the FTC” is to make sure policies reflect company practices.

“There is such a huge role to be played here for in-house counsel,” Rausa explained, “to be able to push on the various teams that you work with to make sure … that the policies that you have that are online are not going to be inaccurate in terms of what you're actually doing.”

More than just the FTC, there is also self-regulation from two major bodies that provide restrictions around notice to consumers, cross-device data and the collection and use of location data: the Digital Advertising Alliance and the Network Advertising Initiative.

But what are the legal ramifications for not complying with these agencies? You can be “named and shamed” in the press, Rausa said, pointing to when genetic testing company 23andMe was singled out by the Better Business Bureau for not observing ad industry standards. When you get bad press, he added, that's generally when regulators pay attention.

Beyond the FTC and self-regulation, there are also specific laws to consider with respect to digital advertising, such as the Children's Online Privacy Protection Act and the Health Insurance Portability and Accountability Act, said Allison Trimble, associate senior counsel at DST Systems Inc.

What's more, if a company is going to collect data to analyze whether a marketing campaign is successful or determine what future products and services should be offered to clients, Trimble said the first step is to go through a privacy assessment to show that privacy implications have been contemplated when necessary.

“What you're going to do is you're going to sit down with your business and get a feel for what are the different data types you're collecting,” she said. “I think where we're going to see the most education or need for education is that personal information is growing,” such as with the growing trend of considering IP addresses personal information.

For many companies, a major piece of their marketing strategy now includes digital advertising. And while this offers an excellent tool for building a brand, there are a number of risks to consider.

This is where in-house counsel have a major role to play in protecting the company, according to panelists at the Association of Corporate Counsel's annual meeting in Washington, D.C., who were speaking in a personal capacity and were not expressing views on behalf of their respective companies.

“Advertising used to be very simple,” panelist Andrew Rausa, advertising and privacy counsel at Facebook Inc., said Monday. You had a brand that maybe contracted with an agency to design a commercial, for instance, and then contracted with a publisher, he said. “Since then, the landscape has gotten a lot more complex. There are additional companies that have come into this space, and the technology has certainly gotten more and more complex.”

To begin with, in-house counsel are critical when it comes to brand safety, Rausa said. “Brand safety is the concept of making sure the brands that companies have spent thousands, millions, maybe even billions of dollars [on] … aren't damaged; they aren't tarnished by putting those brands or advertisements next to unsavory content on the internet,” he said.

This means asking vendors for transparency, Rausa said, which could include requiring them to provide an exhaustive list of where a company's brand may show up, as well as a list of where it actually did show up and an outline of the remedies if those two don't line up. “And then finally, something to consider is, if you get called out, if you get that bad press … are they going to raise their hand? Are they going to say: 'Sorry, we were the ones that did it,' so that your brand doesn't get tarnished?”

The next consideration is making sure ads show up in the right place and to the right people, which inevitably means addressing privacy issues and regulations, Rausa said. In the U.S., the main regulator in this space is the Federal Trade Commission, he explained, adding that the primary way to “avoid the ire of the FTC” is to make sure policies reflect company practices.

“There is such a huge role to be played here for in-house counsel,” Rausa explained, “to be able to push on the various teams that you work with to make sure … that the policies that you have that are online are not going to be inaccurate in terms of what you're actually doing.”

More than just the FTC, there is also self-regulation from two major bodies that provide restrictions around notice to consumers, cross-device data and the collection and use of location data: the Digital Advertising Alliance and the Network Advertising Initiative.

But what are the legal ramifications for not complying with these agencies? You can be “named and shamed” in the press, Rausa said, pointing to when genetic testing company 23andMe was singled out by the Better Business Bureau for not observing ad industry standards. When you get bad press, he added, that's generally when regulators pay attention.

Beyond the FTC and self-regulation, there are also specific laws to consider with respect to digital advertising, such as the Children's Online Privacy Protection Act and the Health Insurance Portability and Accountability Act, said Allison Trimble, associate senior counsel at DST Systems Inc.

What's more, if a company is going to collect data to analyze whether a marketing campaign is successful or determine what future products and services should be offered to clients, Trimble said the first step is to go through a privacy assessment to show that privacy implications have been contemplated when necessary.

“What you're going to do is you're going to sit down with your business and get a feel for what are the different data types you're collecting,” she said. “I think where we're going to see the most education or need for education is that personal information is growing,” such as with the growing trend of considering IP addresses personal information.