Aaron B. Goodman
The ad creative has been produced and approved. The media plan has been crafted. Now it’s time to execute on the plan, and that involves buying the media – i.e., purchasing ad space to place your ads on different media channels (television, print, websites, etc.) so people can see them. Or maybe you’re a publisher looking to monetize your available ad space by selling it to advertisers. Either way, you may be wondering what issues you should be covering in those media agreements. Even if you rely on an agency to do the heavy lifting here, you’ll still want to understand what issues should be addressed. Listed below are three things you should be tackling in those agreements. Although this post focuses primarily on digital online media, such as websites, many of these concepts and takeaways could apply to traditional forms of media as well, such as traditional print media, outdoor billboards, and broadcast radio or television.
As an initial matter, it may be helpful to discuss industry standard media terms. The Interactive Advertising Bureau (IAB) and the American Association of Advertising Agencies (4A’s) have collaborated on a set of standard terms and conditions for Internet advertising. The 4A’s also provides terms for other media channels, such as outdoor billboard advertising and broadcast radio advertising. If you are buying or selling media space, there is a good chance you will run into these terms. But it’s very common for contracting parties to modify them in an addendum or order form to better fit the needs of a particular transaction. You should have a good understanding of the issues at play so you can determine whether modifications are required. I won’t walk through these standard terms in any detail here but rather will highlight some issues you should be thinking about when entering into these agreements, no matter what terms you use.
With that background in mind, here are three things you should address in your media agreements:
This includes the content of the ads as well as the content of the publisher property (e.g., the website) where the ads will appear. If you are an advertiser, you should think about what type of content you want your ad to be placed next to. Advertisers commonly want to avoid having their ads appear adjacent to pornography, violence and other things that are typically considered inappropriate or not brand safe. And this could vary by brand – what might be considered appropriate by one brand may be deemed inappropriate by another. The important thing is that you think this through and ensure the terms address it in an acceptable way. You may also consider whether you want to require some separation of your ad from ads for competitive products and services (“competitive separation”). On the flip side, if you are a publisher, you may similarly have certain restrictions and guidelines about what type of ad content can be displayed on your properties. Many publishers do not allow ads containing certain inappropriate content, or ads for the sale of certain products and services (e.g., weapons, drugs, tobacco), on their properties. Again, the important thing is for publishers to think this through and ensure the terms cover it. In addition to the appropriateness of the content, you should include terms addressing what happens in the event the content infringes someone’s intellectual property rights or violates any laws, rules or regulations. Ideally, you’ll want to be indemnified for claims relating to the other party’s content. Last, you should align on any technical specifications regarding how ad content can be provided (e.g., formatting and sizing) as well as any timing requirements around when the ad content should be delivered or made available.
2. Payment Terms; Tracking and Reporting
Admittedly, I cheated a bit here by including three things and not one in this item. But these three things are so closely related, it makes sense to cover them together. You should include the standard invoicing and payment-related terms, such as timing of invoices and timing of payment. But where it can get a little complicated in media buying, especially digital media, is with respect to how the “deliverables” are tracked and how fees are calculated. In media buying, the deliverables (or what you are paying for) can vary. Depending on how the deal is structured, you may be paying for the number of times a consumer sees your ad, the number of times someone clicks your ad, the number of times someone converts to a customer, or various other ways of measuring campaign deliverables. The important thing is to be clear in the agreement about what deliverables you are paying for or, if you are a publisher, what you are charging for. In addition to spelling out what the deliverables are, you should specify how those deliverables will be tracked and reported and, in turn, how fees will be calculated. Due to the way ads are delivered and the technology used with digital media, this can get a bit complex, but there are a few things you should be thinking about. First, both the advertiser and the publisher may be able to use their own tracking technology (or third-party tracking technology) to track deliverables. The agreement should clearly address how the ads will be tracked by each party, and whose numbers control for purposes of billing in the event of a discrepancy. Second, in certain cases, tools are available to advertisers and publishers to identify and analyze things like fraudulent traffic (e.g., bots) and viewability of the ad (i.e., whether the ad was on the viewable portion of the screen and if so, for how long it was visible). The agreement should describe how these measurement tools will be used and how they will factor into the fees owed; for example, an advertiser may refuse to pay for views identified as fraudulent. Last, the agreement should specify the type and format of any reporting the parties will exchange about these measurement statistics.
Media transactions involve the collection and use of large amounts of data. This data can be extremely valuable and, especially in the case of digital media, can underpin the entire transaction. The terms should address the usage rights related to such data, as well as any compliance obligations. This may vary depending on the transaction, but the first step is understanding what data is involved. Some common categories of data are:
- Existing data an advertiser provides about its customers, website visitors, etc. (advertiser first-party data).
- Existing data a publisher provides about its audience, subscribers, visitors, etc. (publisher first-party data).
- Data licensed from third-party data providers (e.g., targeting segments).
- Data generated during delivery of the ad to a consumer (impressions, clicks, etc.).
- Campaign details and parameters set forth in the order, such as pricing information, ad placement information and targeting requirements.
- In the case of auction buys, information exchanged during the bidding process to help advertisers determine whether and how much to bid on the media (e.g., information about the property or about the consumer who will see the ad).
After you have identified the different “buckets” of data that come into play, you should ensure the terms address usage rights and compliance obligations for each.
This list doesn’t cover every conceivable issue that may arise in connection with media buying. But if you address the issues listed here, you’re off to a great start.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Originally Published At The Mondaq Platform