Online Advertising Legal Update 2014

Bennet Kelley

www.internetlawcenter.net © 2014. Internet Law Center

ONLINE ADVERTISING 2014!

FTC SENDS INFORMATION REQUESTS TO DATA BROKERS

DEC 2012

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RAMIREZ CALLS FOR DO-NOT-TRACK MECHANISM THAT COVERS ALL DATA COLLECTION

APRIL 2013

“[C]onsumers still await an effective and functioning Do Not Track system, which is now long overdue”.

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FTC Sting of Data Brokers Shows High Rates of Abuse

MAY 2013

FTC approached 45 companies seeking such consumer financial data, and "10 appeared willing to sell information without complying with the requirements of the FCRA."

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DO NOT TRACK Debate Heats Up as Advocates Seize the Offensive

JUNE 2013

ü  FTC Commissioner Brill cites Snowden fiasco in launching “Reclaim Your Name” initiative

ü  Mozilla-Stanford team up for cookie clearinghouse to block 3rd party cookies

ü  Still not operational 5

IAB DENOUNCES COOKIE CLEARINGHOUSE AS KANGAROO COURT CALLS MOZILLA’S MAYER “A BOLSHEVIK OF THE INTERNET WORLD”.

JUNE 2013

IAB: COOKIE CLEARINGHOUSE, “A NUCLEAR FIRST STRIKE AGAINST

ADVERTISERS” 6

CALIFORNIA PASSES PRIVACY LEGISLATION REQUIRING WEBSITE DISCLOSURE OF HOW THEY HANDLE DO NOT TRACK REQUESTS

ü  The categories of personally identifiable information (“PII”) collected; ü  the categories of third-parties with whom the information is shared; ü  whether there is a process for the consumer to review information

collected and/or make changes; ü  whether 3rd parties collect a user’s PII; and ü  how the website responds to DNT requests. 7

FTC TO HOLD ANOTHER BIG DATA WORKSHOP

MAR 2014

ü  How are companies utilizing these predictive scores? ü  How accurate are these scores and the underlying data used to

create them? ü  How can consumers benefit from the availability and use of these

scores? ü  What are the privacy concerns surrounding the use of predictive

scoring? ü  What legal protections currently exist for consumers regarding the

use of predictive scoring, both in the United States and internationally?

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ü  HARRIS

FILES SUIT AGAINST DELTA OVER MOBILE APP

ü  HARRIS RELEASES BEST PRACTICES GUIDE FOR MOBILE APP

DEC-JAN 2013-14

Delta won dismissal of suit on preemption grounds.

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FTC Releases Staff Reports on Mobi le Pr ivacy Disclosure and highl ight ing fai lure of disclosures in Mobi le Apps for Kids

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FTC TO HOLD

WORKSHOP ON MOBILE

DEVICE TRACKING

What different types of mobile device tracking are companies currently implementing, how do they work, and where are they used? What are the similarities or differences between mobile device tracking and online tracking technologies? What types of information and benefits do retailers gain from these technologies? What benefits do consumers derive from these technologies? What are the privacy and security risks associated with these technologies? How are companies addressing these risks? What information and choices are provided to consumers about this type of tracking? How anonymous is the tracking?

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FTC Updates Dotcom Disclosure Guidelines

Hey @InternetLawCent check out our new .com Disclosure Guides. Its Free*!

UPDATE PRIOR GUIDELINES TO ADDRESS ü  SOCIAL

MEDIA

ü  MULTIPLE PLATFORMS

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¡ PROMINENCE Is i t b ig enough for consumers to not ice?

¡ PRESENTATION Is wording and format easy for consumers to understand?

¡ PLACEMENT I s i t where consumers w i l l l ook?

¡ PROXIMITY I s i t c lose to the c la im i t qua l i fies?

THE FOUR PS

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MOBILE WEB

MULTI-PLATFORMS

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THE CURSE OF 140 CHARACTERS

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“Jul ie Brown – PS” Use Of Acronym Nobody’s Heard Of

UOANHO SYNDROME

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FTC ISSUES GUIDANCE TO SEARCH ENGINES

JUNE 2013

Results integrated into the natural search results, search engines should use: ¡  MORE PROMINENT SHADING that has a clear out l ine;

¡  A PROMINENT BORDER that dist inct ly sets off

advert is ing from the natural search results; or

¡  TEXT CUES 17

FTC WORKSHOP ON NATIVE ADVERTISING

Increasingly, advertisements that more closely resemble the content in which they are embedded are replacing banner advertisements – graphical images that typically are rectangular in shape – on publishers’ websites and mobile applications.

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FEB 2013

Another FTC No Action Letter

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Inc luding one on comparat ive pr ic ing, that might have spared Overstock ’s $6.42 mi l l ion judgment for decept ive pr ice adver t is ing.

MARCH APRIL 2013

AMAZON TAX HEADS TO WASHINGTON

ü  NEW YORK HIGH COURT UPHOLDS AMAZON TAX

ü  SENATE PASSES MARKETPLACE FAIRNESS ACT

“Don't tax you, don't tax me, tax that man behind the tree.”- Sen . Russell B. Long

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¡ Quill v North Dakota: Adopts Bright Line Rule under Due Process and Commerce Clause: Need Physical Presence in State to Be Required to Collect Sales Taxes 504 U.S. 298 (1992)

¡ New York “Amazon Tax”. Deemed to have in-state presence if §  Affiliate Marketers who receive

commissions §  generate gross receipts in

excess of $10,000 during preceding four quarters

AMAZON TAX

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¡ NEW YORK COURT PUNTS UPHOLDS LAW §  The world has changed dramatically in the last two

decades, and it may be that the physical presence test is outdated. An entity may now have a profound impact upon a foreign jurisdiction solely through its virtual projection via the Internet. That question, however, would be for the United States Supreme Court to consider.

§  Amazon has filed petition for cert. Overstock.com v. New York, 20 NY3d 586 (2013).

¡  ILLINOIS SUPREME COURT STRIKES DOWN LAW §  Violates Internet Tax Fairness Act (47 USC Section

151) by imposing discriminatory obligations. §  Performance Marketing Ass’n v Hamer, 2013 IL

114496 (2013).

AMAZON TAX ALL EYES ON WASHINGTON

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SUPREME COURT DENIES CERT

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¡ MARKETPLACE FAIRNESS ACT STALLS IN THE HOUSE § Allow states to collect online

sales tax if they are part of Streamlined Sales and Use Tax Agreement

§ Small Business Exemption § Passed Senate 69-27 § Stalled in the House

AMAZON TAX ALL EYES ON WASHINGTON

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New York AG Busts 19 Companies for wr i t ing fake rev iews on Yelp etc. In December, Cal i forn ia AG fi les indictment against onl ine reputat ion company l inked to revenge porn s i te .

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XCENTRIC VENTURES, LLC v. ROBERTS et a l .

Court denies Rip-off Report request for preliminary injunction against company promoting boycott of its advertisers. 27

DEC 2010

Fighting Internet and Wireless Spam Act (C-28) passes

JULY 1, 2014

Law and Implementing Regs go into effect

Canada’s enforcement authorities indicated they were ramping up and their first enforcement priority would “the most egregious violators: the high-volume spammers, the 6,000 malicious URLs and the 20 botnets currently located in Canada.” Photo Creative Commons “Canada’s Gold” by Sheezix1000. 28

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ü Alteration of transmission data in an electronic message to a destination other than that specified by the sender without express consent; and

ü Installation of a computer program on another person's computer without express consent of the recipient.

ü Sending commercial email without express or implied consent of the recipient ü Implied consent if existing

business or non-business relationship;

ü Implied consent if posting email address on website or providing business card without a statement indicating not to send unsolicited commercial email .

ü Failure to include opt-out mechanism and identify the advertiser by name and address;

KEY PROHIBITIONS

THANK YOU!

Bennet Kelley Internet Law Center100 Wilshire #940Santa Monica, CA 90401www.internetlawcenter.net (310) 452-0401 bkelley@internetlawcenter.net Twitter: InternetLawCent WPBlog: ILCCyberReport Sign Up for our Newsletter on our website. Also be sure to listen to Cyber Law and Business Report Wednesdays at 10AM Pacific on WebmasterRadio.fm. Download the WebmasterRadio mobile app and take us with you. Website: Cyberlawradio.com Twitter: CyberLawRadio

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