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On 7 September 2020, the European Data Protection Board (“EDPB”) adopted draft guidelines on the targeting of social media users (the “Guidelines”).  The Guidelines aim to clarify the roles and responsibilities of social media providers and “targeters” with regard to the processing of personal data for the purposes of targeting social media users.
Continue Reading EDPB Publishes Draft Guidelines on the Targeting of Social Media Users

On March 5, Senators Ed Markey (D-MA) and Richard Blumenthal (D-CT) introduced the Kids Internet Design and Safety (KIDS) Act.  The bill, which covers online platforms directed to children and teenagers under 16 years old, aims to curb the time spent by these minors on such platforms and could dramatically affect advertising and influencer content on kids’ channels.

The bill would prohibit platforms directed to minors from implementing features that encourage users to spend more time online, such as “auto-play” settings that automatically load a new video once the selected one finishes playing, push alerts that encourage users to engage with the platform, and the display of positive feedback received from other users.  It would also ban badges or other visual incentives and rewards based on engagement with the platform.

Additionally, the KIDS Act would prohibit platforms from recommending or amplifying certain content involving sexual, violent, or other adult material, including gambling or “other dangerous, abusive, exploitative, or wholly commercial content.”  The bill would require the implementation of a mechanism for users to report suspected violations of content requirements.
Continue Reading New Bill Seeks to Impose Design Restrictions on Kids’ Online Content and Marketing

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

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 from making misrepresentations about the status of their endorsers, required to clearly and conspicuously disclose material connections with such endorsers, and are required to monitor their endorsers.
Continue Reading FTC Settles with PR Firm and Publisher Over Social Media Endorsements

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 requiring them to disclose the payments in their posts. In addition, the FTC issued warning letters to 21 out of the 90 social media influencers it had sent educational letters to earlier this year, citing specific social media posts that they felt still failed to “clearly and unambiguously” disclose a material connection between the influencers and the brands or products they were promoting. The letters asked them to respond in writing, by September 30th, advising staff of whether they do, in fact, have a material connection with the brands/products cited in the letters and, if so, describing how they will ensure such relationship is clearly disclosed going forward. Finally, the FTC updated its guidance on its official Endorsement Guidelines with additional examples featuring common social media advertising mechanisms such as Instagram, Snapchat, and Facebook.
Continue Reading FTC Reaches Settlement with Influencers; Issues Updated Guidance

On September 16, 2016, the Federal Trade Commission (“FTC”) hosted a workshop on the factors that may contribute to the effect disclosures have on consumer behavior. The workshop, “Putting Disclosures to the Test,” included speakers from a wide range of disciplines and industries, who remarked on aspects of disclosure such as consumer cognition, recognition, and comprehension, methodologies for measuring disclosure effectiveness, the impact of disclosures on consumer decision-making, and disclosure design.

In her introductory remarks, Lorrie Cranor, Chief Technologist at the FTC, espoused the benefits to privacy disclosures of studying research in other areas. Edith Ramirez, Chairwoman of the FTC, then opened the workshop with remarks on issues that are important to the FTC. The FTC’s primary task, she stated, is to ensure consumers have access to truthful and accurate information, to enable them to make decisions in the marketplace. Their focus, with respect to disclosure of information, is on the effect of disclosure on consumer welfare. They consider some disclosures necessary to prevent deception in advertising, or to communicate the risks of products, or choices consumers may have. With respect to privacy, the FTC encourages companies to disclose their data practices, so consumers have greater control over how their data is used. They require disclosures to be clear and conspicuous, so consumers can understand them and make informed decisions.
Continue Reading FTC Hosts “Putting Disclosures to the Test” Workshop

By Megan Rodgers

The FTC today announced that it reached a settlement with Lord & Taylor over a native advertisement and promotion that relied on social media “influencers” to promote a particular product.

This was the first native advertising settlement reached by the FTC since it issued its Policy Statement on Native Advertising in December 2015.

The campaign at issue involved Lord & Taylor’s promotion of its Design Lab clothing collection, which featured a paisley asymmetrical dress.  The FTC identified two problems with Lord & Taylor’s practice.
Continue Reading FTC Settles With Lord & Taylor Over Native Advertisement and “Influencer” Promotion

By Megan Rodgers

The Federal Trade Commission today issued an Enforcement Policy Statement on Deceptively Formatted Advertisements.  The Policy Statement addresses occasions in which certain media outlets blur the traditional line between advertisements and editorial content, and seeks to clarify advertisers’ and publishers’ obligations regarding native advertising and social media.

Native advertisements can take a variety of forms, but all are intended to look “native” to the outlet in which they appear, unlike traditional display or pop-up advertisements.  As native advertisements have become increasingly popular over the last several years, they have also garnered the attention of the FTC.

In December 2013, the FTC held a workshop on native advertising and brought together academicians, publishers, and ad networks.  Around that time, industry groups such as the Interactive Advertising Bureau and the American Society of Magazine Editors created best practices in the area, and the industry anticipated that the FTC would publish additional guidance on the issue.

In a press release accompanying the Policy Statement today, the FTC’s Director of the Bureau of Consumer Protection Jessica Rich said that the “FTC’s policy applies time-tested truth-in-advertising principles to modern media.”  In addition to the Policy Statement, the FTC released an accompanying guidance, “Native Advertising: A Guide for Business,” to help companies understand and comply with the Policy Statement.  The guidance provides examples of when and how to make effective disclosures in native advertisements.
Continue Reading FTC Issues Policy Statement on Native Advertising

As part of its broader effort to develop a “Do Not Track” (DNT) web browser privacy standard, the World Wide Web Consortium (“W3C”), an international organization that develops Internet standards, recently released a draft of one technical component of the standard to gather implementation experience from the developer community.
Continue Reading Web Standards Group Releases Candidate Recommendation As Part of Broader “Do Not Track” Review

On July 1, 2015, China’s State Administration for Industry and Commerce published a draft of the Interim Measures on Supervision of Internet Advertising (“Draft Internet Advertising Measures”; original Chinese here) for public comment. If adopted as drafted, the Draft Internet Advertising Measures would (1) require advertisements in email and instant messaging to contain conspicuous options for the user to agree to, refuse, or unsubscribe from advertisements; (2) require websites to allow users to block pop-ups for certain repeat visitors; and (3) require advertisements sent via email or instant message to identify the sender and be marked as an advertisement. Public comments on the Draft are due by July 31, 2015. Once finalized, the Draft is expected to come into effect on September 1, 2015.
Continue Reading Draft Regulations in China Preview Stricter Rules on Internet Advertising