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German court decides that GDPR consent can be tied to receiving advertising

On June 27, 2019, the High Court of Frankfurt decided that a consent for data processing tied to a consent for receiving advertising can be considered as freely given under the GDPR. The case concerned an electricity company that relied on consent obtained by another company to advertise its products and services to the claimant. … Continue Reading

CJEU rules that Facebook and website operators are joint controllers if the website embeds Facebook’s “Like” button

On July 29, 2019, the Court of Justice of the European Union (“CJEU”) handed down its judgment in the Fashion ID case (Case C-40/17).   The CJEU found that when a website operator embeds Facebook’s “Like” button on its website, Facebook and the website operator become joint controllers. The case clarifies the relationship between website operators … Continue Reading

ICO Updates Guidance on Cookies and Similar Technologies

Back in 2013, we published a blog post entitled, “European Regulators and the Eternal Cookie Debate” about what constitutes “consent” for purposes of complying with the EU’s cookie rules.  The debate continues…  Yesterday, the ICO published new guidance on the use of cookies and a related “myth-busting” blog post.  Some of the “new” guidance really … Continue Reading

French Supervisory Authority will issue new guidelines on cookies

On June 28, 2019, the French Supervisory Authority (CNIL) announced that it will issue new guidelines on the use of cookies for direct marketing purposes.  It will issue these guidelines in two phases. First, during July 2019, the CNIL will update its guidance issued in 2013 on cookies.  According to the CNIL, the 2013 guidance … Continue Reading

The FTC Announces Consumer Review Fairness Act Enforcement Actions

On May 8, 2019, the Federal Trade Commission (FTC) announced its first three cases that exclusively enforce the Consumer Review Fairness Act (CRFA).  Enacted in December 2016 to protect consumers’ ability to share their honest reviews, the CRFA prohibits companies from using form contracts that bar consumers from writing negative reviews or threaten them with … Continue Reading

German DSK publishes guidance on the applicability of the German Telemedia Act to telemedia services

On April 5, 2019, the association of German Supervisory Authorities for data protection (‘Datenschutzkonferenz’ or ‘DSK’) published a guideline regarding the applicability of the German Telemedia Act (‘TMG’) to telemedia services – including, for example, the use of website cookies for targeted advertising post-GDPR. The guideline aims to “clarify and concretize” a previous statement on … Continue Reading

EDPB Begins Consultation on New Guidelines on Use of the “Performance of a Contract” GDPR Legal Basis by Online Services

On 9 April 2019, the European Data Protection Board (“EDPB”) adopted new guidelines “on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects.” In general, the GDPR requires that processing of personal data be justified under a legal basis in Article 6 GDPR.  … Continue Reading

California Supreme Court Case to Address Scope of TCPA Insurance Coverage

The California Supreme Court has agreed to take up the question of whether a commercial general liability policy that covers “personal injury”—which, in relevant part, is defined as injury that arises out of a violation of an individual’s “right of privacy”—triggers the insurer’s duty to defend the insured against a claim that the insured violated … Continue Reading

Dutch Supervisory Authority Prohibits “Cookie Walls” under GDPR

On March 7, 2019, the Dutch Supervisory Authority for data protection issued guidance prohibiting the use of “cookie walls” on websites.  Cookie walls require website users to consent to the placing of tracking cookies or similar technologies before allowing them access to the website.  According to the regulator, it received many complaints about this practice. … Continue Reading

The Court of Justice of the European Union reiterates broad application of the EU Data Protection Law’s journalism exception to online platforms

On January 14, 2019, the Court of Justice of the European Union (“CJEU”) decided that video recordings of police officers in the exercise of their duties and the uploading of such videos on YouTube may constitute “journalistic activities” in the meaning of the journalism exception of the EU Data Protection Directive (“Directive”) (available here). The … Continue Reading

Vermont and D.C. Enact New Auto-Renewal Statutes

Vermont and the District of Columbia recently joined the growing list of states that have enacted automatic renewal statutes.  Automatic renewal clauses (“auto-renewals”) allow providers of goods or services to bill consumers periodically without obtaining express consent before each billing cycle.  These clauses are becoming increasingly common for a variety of goods and services.  Regulators … Continue Reading

Austrian Data Protection Authority Validates Paid Subscription Model as a Viable Alternative to Ad Tracking

On 30 November 2018, the Austrian Data Protection Authority (“DPA”) decided that the website of an online media publisher – which offers users the option to either consent to advertising cookies or pay for a subscription – gives users a free choice that is compatible with the requirements of consent under the GDPR. (The decision … Continue Reading

FTC Settles with PR Firm and Publisher Over Social Media Endorsements

Just before the Thanksgiving holiday, the Federal Trade Commission (“FTC”) announced the issuance of consent orders involving Creaxion Corporation and Inside Publications, LLC to settle allegations that the companies misrepresented paid endorsements as independent opinions, and misrepresented paid commercial advertising as independent editorial content.  As a result, these companies and their principals are now prohibited … Continue Reading

CNIL imposes GDPR-consent in online advertising space

On November 9, 2018, the French Supervisory Authority for Data Protection (known as the “CNIL”) announced that it issued a formal warning (available here) ordering the company Vectaury to change its consent experience for customers and purge all data collected on the basis of invalid consent previously obtained.   Vectaury is an advertising network that … Continue Reading

FCC Seeks Comment on Ninth Circuit’s Expansive TCPA Interpretation in Marks

Yesterday, the FCC released a Public Notice seeking comment on a recent decision issued by the U.S. Court of Appeals for the Ninth Circuit in Marks v. Crunch San Diego, LLC, No. 14-56834 (Sept. 20, 2018).  The Public Notice, issued in the context of the FCC’s Telephone Consumer Protection Act (TCPA) reform proceeding, seeks comment … Continue Reading

District Court Rules “Direct Drop” Voicemails Subject to TCPA

Last month, a Michigan federal district court judge denied defendant’s motion for summary judgment regarding application of the Telephone Consumer Protection Act (“TCPA”) to “direct drop” voicemail messages (also known as “ringless voicemail”).  Emphasizing the “broad net” cast by the TCPA, Judge Gordon J. Quist of the Western District of Michigan held that such messages … Continue Reading

Updates to California Auto-Renewal Law Take Effect on July 1, 2018

Companies that offer or are considering subscription-based plans should take note that new requirements for automatic renewal offers (“auto-renewals”) take effect in California on July 1, 2018.  California Senate Bill No. 313 (“SB 313”) amends existing law to extend additional protections to consumers where an auto-renewal offer includes a free gift or trial or where … Continue Reading

Interactive Advertising Bureau Europe Opens Registration for Transparency and Consent Framework

IAB Europe opened the registration process for vendors and consent management providers (“CMPs”) to apply for approved status under IAB Europe’s Transparency and Consent Framework (“Framework”). The Framework intends to provide publishers that have decided that the interest-based advertising products available on their platforms require user consent to deploy a standardized framework to (1) disclose … Continue Reading

D.C. Circuit Rejects Portions of FCC Decision Interpreting Key TCPA Terms

The U.S. Court of Appeals for the D.C. Circuit on Friday issued a long-awaited ruling in a lawsuit challenging the Federal Communications Commission’s interpretations of key terms under the Telephone Consumer Protection Act of 1991 (“TCPA”), holding that the FCC in 2015 had adopted an unreasonably broad definition of the type of calling equipment subject … Continue Reading

FTC Grants Sears’ Petition to Reopen and Modify Consent Order Based on Changed Conditions of Fact

This week, the Federal Trade Commission (“FTC”) granted Sears Holdings Management’s (“Sears”) petition to reopen and modify a 2009 consent order regarding the tracking of personal information on Sears’ software apps.  We analyzed Sears’ petition last fall, which sought to modify the definition of “tracking application,” which triggered heightened notice and consent requirements under the … Continue Reading

District Court Rejects Consent Revocation Claim Under TCPA

A recent District of New Jersey case emphasizes that while, under the FCC’s 2015 interpretation of the law, a customer has a broad right to revoke consent to receive automated calls and texts under the Telephone Consumer Protection Act (“TCPA”), the manner in which the consumer seeks to revoke his or her consent must be … Continue Reading

FTC Seeks Comment on Petition to Modify 2009 Sears Order Concerning Online Browsing Tracking

The Federal Trade Commission (“FTC”) is soliciting public comments on a petition filed by Sears Holdings Management (“Sears”) to reopen and modify a 2009 FTC order regarding the tracking of personal information on their software apps.  The petition is notable for a number of reasons.  First, the Sears consent order was a seminal order in … Continue Reading

FTC Twitter Chat: Influencers 101

Earlier this month, the FTC settled with two social media influencers for failing to provide adequate disclosures in their promotions of their company, and issued 21 warning letters to other influencers it felt continued to violate the FTC Endorsement Guidelines in spite of the educational letters the FTC had sent earlier this year. In addition … Continue Reading

FTC Reaches Settlement with Influencers; Issues Updated Guidance

The FTC recently announced that it reached a settlement with two social media influencers, Trevor Martin and Thomas Cassell, for deceptively endorsing their owned and operated online gambling service “CSGO Lotto” without disclosing that they were the owners of the site, as well as paying other well-known social media influencers to promote the site without … Continue Reading
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