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German Court Requires Facebook to About Face

This post was written by Katharina Weimer.

A German Court thinks it may be time to de-friend Facebook. On 6 March 2012, the Regional Court in Berlin took a rare opportunity to rule on several features available on the social media platform Facebook, and not surprisingly opined that Facebook needs to provide more transparency and ask for consent when using users’ information. Worded in the form of consents, the German Court held:

  • Consent No. 1: Facebook may no longer make available one of its most used features, the “friend finder,” without proper information of the user and consent of the user’s contacts who are invited to join Facebook via email
  • Consent No. 2: The exploitation of user content that is protected by intellectual property rights requires affirmative and specific user consent. The language purporting to grant Facebook a comprehensive, worldwide, royalty-free license that is incorporated into Facebook’s existing terms of use is not sufficient.
  • Consent No. 3: Facebook needs to reword its consent regarding the use of personal data for advertising purposes

Although the judgment is technically not legally binding as yet, Facebook announced it will carefully review the consequences and consider legal remedies once the judgment is available in full length. This decision may lead the way to more transparency and user control over social media and the use of information in Germany. Having a world of information at your fingertips and incorporating user content in Web 2.0 services is a great tool for user interaction and learning more about them, but the court’s ruling suggests that Facebook not forget for whom their service was created – the users, not the advertisers. As Facebook edges closer to an IPO and looks to monetize its services and features, the German Court’s view is that Facebook needs to continue to give its users control over their content and information. Stay tuned to Legal Bytes for more details as the court proceedings continue.

Vielen dank (many thanks) to Katharina Weimer for the insights and the update. If you need legal or regulatory counsel, contact Katharina directly, or you can always contact me, Joseph I. (“Joe”) Rosenbaum, or the Rimon lawyer with whom you regularly work.

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White House Releases Privacy Report and Calls For a Consumer Bill of Rights

Earlier today, Secretary of Commerce John Bryson and Federal Trade Commission Chairman John Liebowitz outlined the Obama administration’s strategy for ensuring “consumers’ trust in the technologies and companies that drive the digital economy.” On the heels of their announcement, and although it is dated January 2012, the Department of Commerce released a long-awaited report entitled “Consumer Data Privacy in a Networked World, A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy,” the administration’s roadmap for privacy legislation and regulation in the years ahead.

The announcement and privacy blueprint envisions a comprehensive and integrated framework for data protection, rather than the current sector-patchwork-quilt approach, and is comprised of four key pillars: (1) a consumer privacy bill of rights; (2) a multi-stakeholder process and approach dealing with how such a bill of rights would apply in a business context; (3) more effective enforcement; and (4) greater commitment to harmonization and cooperation in the international community.

The Report outlines the seven principles of its proposed Consumer Privacy Bill of Rights and, although calling for legislation and regulation to codify and memorialize these rights, also sets out consumer privacy standards that companies are asked to immediately and voluntarily adopt in a cooperative public-private partnership. These seven principles are:

  1. Individual Control Through Choice
  2. Greater Transparency
  3. Respect for Context
  4. Secure Handling
  5. Access & Correction Rights
  6. Focused Collection
  7. Accountability

The Report notes that a company’s adherence to the voluntary codes will be viewed favorably by the FTC in any investigation or enforcement action for unfair and deceptive trade practices. By implication, a company that does not adopt and follow these principles might be used as evidence of a violation of Section 5 of the FTC Act, even if federal legislation is not passed on the subject. The FTC is expected to soon release its Final Staff Report on Consumer Privacy that will be consistent with the Obama administration’s proposed Framework Report. The report reinforces the administration’s commitment to international harmonization, and also touches upon the role state attorneys general in the United States can play. While we are still reviewing the details – and more will likely be forthcoming from the administration in the weeks and months ahead – Legal Bytes will keep you on top of these developments as they arise.

You can read the entire report right here: Consumer Data Privacy in a Networked World, A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy.

These are developments that affect all businesses, domestic and multi-national, global and local, consumers and regulators. The complexity and challenges of compliance should not be underestimated, nor should the administration’s commitment to follow the roadmap outlined. Rimon has teams of lawyers who have experience and follow developments in privacy and data protection, from prevention and policy to compliance and implementation. If you want to know more, need counsel, need help navigating, or if you require legal representation in this or any other area, feel free to call me, Joseph I. (“Joe”) Rosenbaum, or any of the Rimon lawyers with whom you regularly work.

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Robocop Fights Robocalling

In the 1987 film "Robocop", directed by Paul Verhoeven, a terminally wounded cop returns to the police force as a powerful cyborg, albeit with haunting memories, to fight crime and evil. Fast-forward to 2012 and "robo calling."

One of the government’s main consumer cops, the Federal Communications Commission, has acted to tighten rules regarding the use of so-called "robo calling" (ok, it’s auto-dialing systems). The FCC’s official order has not been released, but the following is clear:

  • Express written consumer consent in advance will be required before using an autodialer or prerecorded message
  • You can no longer rely on an "established business relationship" as an exception to the prior written consent requirement
  • Each robocall must include an automated opt-out mechanism
  • Rules governing abandoned or "dead air" calls will be tightened

When the final regulations and order designating the effective date and detailing precisely how these rules will be applied are released, we’ll bring you the news; but in the meantime, you can read more about the FCC’s action and its thinking right here: FCC Approves Order to Tighten Regulatory Treatment of Robocalls Under the Telephone Consumer Protection Act.

As always, if you need legal or regulatory counsel, call me, Joseph I. ("Joe") Rosenbaum, or any of the lawyers highlighted in the full client alert, or, of course, the Rimon lawyer with whom you regularly work.

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Stealing Limelight from Hollywood, California Shines the Light on Privacy

California’s Shine the Light Act, California Civil Code 1798.83, responded to the perceived need for transparency and provides consumers certain rights in connection with how businesses share information about California residents for purposes related to direct marketing. The regulatory team at Rimon has prepared a Rimon Shine the Light Act Reference Guide; and while the Act doesn’t apply to every business, if it does apply, liability may be as high as $3,000 per violation. You can view the entire blog posting on our sister GRE Law Blog.

As always, if you need guidance from lawyers who have experience and resources aligned to deal with these issues, call me, Joseph I. (“Joe”) Rosenbaum; any of the lawyers highlighted in the posting; or, of course, the Rimon lawyer with whom you regularly work.

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Advertising Internet Speeds: Can You Handle the Truth?

In The Wall Street Journal online, Carl Bialik, The Numbers Guy writer and blogger, analyzes the numbers behind advertised versus actual broadband Internet download speeds, and government efforts to measure what the consumer receives compared with what is promised by the ISPs.

In his posting entitled, "How Speedy Are High-Speed Internet Lines?", Mr. Bialik examines the issue of whether statistics derived from a report commissioned by the Federal Communications Commission (www.fcc.gov) are used in a way that is meaningful to consumers when evaluating the offerings of Internet service providers.

Notably, Mr. Bialik’s article also compares the approach taken by the UK’s Office of Communications (Ofcom) in measuring the speeds offered on the other side of the pond, which maintains the panel of tested carriers in secret to prevent any "gaming" of the test process and system.

Joseph I. ("Joe") Rosenbaum is quoted in the posting in connection with some of the legal issues that arise when statistics and factual information contained in government or other reports are used in advertising. Truth (facts) may not, as in the case of defamation, be an absolute defense.

The government may feel that consumers can’t handle the truth. Or at least the truth, depending on the context and the manner in which it is used in advertising. When, for example, can statements that are literally true become false or misleading? As has been previously noted in Legal Bytes, using old facts can be deceptive and misleading when facts are outdated and new facts are available, or when the old facts clearly don’t apply.

In some cases, even current facts can be misleading. If I advertise that an article will be posted on Legal Bytes once a month and I post two, can I claim that Legal Bytes beats its own advertised promise to consumers by double? If you and I enter a race and I win, can you advertise that I came in next to last and you came in second? Is that true? Yes. Is it misleading? Yes. I’ve omitted facts that are material to the information quoted and that are material to the context for you to evaluate.
The truth, after all, is not always that simple and I am grateful for that. As in the words of William Jennings Bryan: "If it weren’t for lawyers, we wouldn’t need them."

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Whatz Gnu

Many thanks to the International Law Office (ILO) for publishing a derivative of our Legal Bytes article. You can download and read a personal copy of the ILO posting FTC Targets Ads That Target Kids, or you can read the original Legal Bytes blog posting at "Mom, is it OK for them to follow me?" FTC Targets Ads That Target Kids.

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MMA Releases Mobile App Privacy Guidelines – Appy Days Are Here Again

A few days ago (October 17), the Mobile Marketing Association released its MMA Mobile Application Privacy Policy, which the MMA asserts is the first industry guideline to deal with data protection and privacy specifically related to mobile and wireless applications. The guideline being made available for comment is slated to be finalized sometime after November 18, 2011, when the MMA’s comment period is scheduled to close. The press release notes that there are currently more than 425,000 iPhone/iPad apps available from Apple’s App Store, and more than 200,000 available for Android.

The document is intended to deal with some of the basic privacy principles and text that developers should consider incorporating into mobile apps to let consumers know how their data is collected and used, as well as information regarding confidentiality and the security of information that becomes available when a consumer installs and uses a mobile app. Obviously, legal disclaimers and disclosures and issues related to privacy and data protection are quite jurisdiction-specific, and compliance will always require consultation with legal counsel to be sure mobile, and all other online and other applications and processes, conform to the legal requirements of each jurisdiction that applies to consumers for that application or process.

Rimon’s offices around the world are open, coordinating with our Advertising Technology & Media law practice group, ensuring that lawyers knowledgeable in data protection and privacy, as well as in mobile technology and marketing, are available to help you. As always, if you want to know more about how lawyers who understand can help your business, feel free to contact me, Joe Rosenbaum, or any of the Rimon attorneys with whom you regularly work.

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Lawyer Advertising – Manipulate This!

When it comes to advertising, lawyers are bound not only by laws and regulations that apply to all advertisers, but also by the rules set by the professional licensing authorities in each state in the United States, as well as by many “Bar” Associations (Bar as in Barrister, not barista or your local tavern). These authorities and associations often set more stringent advertising standards and rules, based on ethical guidelines and professional standards.

Florida has some of the most stringent restrictions on attorney advertising in the United States. For example, Florida’s rules prohibited ads that were “manipulative” (whatever that means) or that included “background sound other than instrumental music” – presumably to prevent the sounds of ambulance sirens or jail cell doors slamming.

The restrictiveness of attorney advertising, including Florida’s tough rules, has been the subject of criticism, as noted in a previous Wall Street Journal article.

Yesterday, a federal judge in Jacksonville, Fla., ruled that these restrictions are vague and violate the First Amendment rights of lawyers, and must go! The judge’s ruling noted that, “The term ‘manipulative’ is so vague that it fails to adequately put members of the Bar on notice of what types of advertisements are prohibited” – declaring the standard void. The judge also overturned the prohibition on background sounds, noting that such a rule violates the free speech rights of attorneys. Here is the entire Harrell v. Florida Bar decision [PDF] if you are interested.

In honor of the occasion, one clever individual decided to create a “lawyer ad” parody, which, by the way, has sounds previously banned by the Florida regulations. Enjoy.

 

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Advertising: Misleading? Deceptive? What Do Consumers Think?

I have to thank Carl Bialik, The Numbers Guy writer and blogger for The Wall Street Journal, for including a quote in his recent (September 23, 2011) column, Bag Battle Takes a Statistical Turn.

The column focuses on the use of statistics by competitors and analysts alike – in this case statistics that related to claims made by Chicobag about the environmental impact of reusable plastic bags that many retail stores use to bag items, from groceries to clothing, when you check out with your purchases. It seems that Chicobag made some claims – citing statistics – about its products. Mr. Bialik’s column notes that Hilex Poly and some other competitors challenged the claims being made by Chicobag, and were unable to come to grips with either the numbers or the claims; litigation ensued.

Although Mr. Bialik focuses on the way numbers are used and the difficulties inherent in accumulating and using statistics – often when the subject matter may actually be a moving target – the legal issue is similarly complex. More often than not, false, misleading, deceptive advertising claims challenge the explicit veracity of a claim and whether that claim can be substantiated or whether the “net impression” or implicit claims (e.g., pictures or activities) can mislead or potentially deceive consumers. This claim, brought as an action under the Lanham Act – seeking an injunction and damages for false advertising and unfair competition for both a violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and under a state statute (South Carolina Unfair Trade Practices Act, South Carolina Code Annotated § 39-5-10, et seq.) – really revolves around whether the veracity or inaccuracy of claims (even if they can be substantiated or derived from facts that were believed to be true when stated) makes any difference at all in the minds of consumers.

Without giving away The Numbers Guy’s secrets (or forgetting the Federal Trade Commission Act that prohibits “unfair or deceptive acts or practices in or affecting commerce”), the legal claim, in my view, hinged not on whether the statistics claimed by Chicobag were incorrect or even in some cases materially inaccurate, but whether the particular claims as made using those statistics, were material to a consumer. Whether a consumer was likely to make a different purchasing decision – or might at least be informed enough to consider doing so – based on the degree of inaccuracy.

So when you think of my blog Legal Bytes, I’ll close with a claim that everyone sees on those pizza cartons around the country – maybe the world: “You’ve tried the rest. Now try the best!” Can you say “puffery”?

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“Mom, is it OK for them to follow me?” FTC Targets Ads That Target Kids

Many of us remember when kids were actually worried about being caught misbehaving. Back in those days, parent’s concern over children’s behavior dealt with whether the kids were ‘fresh’ or ‘mischievous’ or talked too much in school. I was perennially the subject of “he would do so much better in class if he just stopped horsing around and paid attention.” Dear Mrs. Frohman, Mrs. Handel, Mrs. Flynn and Mrs. Bernstein – thanks! It took me several decades, but I finally got the message. Today, however, when we hear the terms children and behavior – well, at least according to the FTC, it ain’t the children that are misbehaving.

In a proposed amendment to rules that have been in effect since 2000, the Federal Trade Commission (“FTC”) is proposing amendments to COPPA (the Children’s Online Privacy Protection Act”) that “would require parental notification and consent prior to the collection of persistent identifiers where they are used for purposes such as amassing data on a child’s online activities or behaviorally targeting advertising to the child.” In describing the proposed changes (the proposed  Amendment runs 122 pages long), the FTC notes that these new rules would apply to any identifying or tracking technology (cookies) that would link a child’s browsing behavior across multiple web pages and services – ostensibly including advertising networks and metric/measurement/analytical service providers who routinely have access to such information.

Although a ‘safe harbor’ for compliance with self-regulatory programs is included within the FTC’s proposal, it did suggest that these programs (and individual company compliance with these programs) be more closely monitored and supervised – including mandatory audits every 18 months and reports detailing actions taken by the self-regulatory body against the companies that do not comply. Clearly, one of the FTC’s objectives is to not only ensure a mandatory review of compliance, even for those companies that have not been subject to proceedings, but also to create a record-keeping and reporting system that gives the FTC the ability to obtain detailed information about the proceedings and the compliance efforts of individual companies.

Comments, which are due by November 28, 2011, may be filed with the FTC using it’s COPPA Rule Review Form. If you are interested, concerned, want your voice heard, or otherwise need to be guided by experienced counsel in this area, please feel free to contact me, Joseph I. Rosenbaum, or the Rimon lawyer with whom you regularly work. We would be happy to help!