Social Media

On Thursday, mobile messaging application Snapchat agreed to settle Federal Trade Commission (“FTC”) charges that it made false or misleading representations about the ephemeral nature of its messages, the collection of user information, and the nature of its security practices. The FTC Complaint alleges six counts, many of which demonstrate the Commission’s aggressive enforcement of the FTC Act in the mobile space.

According to the Complaint, the Snapchat app allows users to send and receive photo and video messages, or “snaps,” for a limited period of time. In marketing its app, Snapchat has stated that its snaps “disappear forever” after the limited time expires. The company has also said that it will notify senders in the event that a recipient manages to take a screenshot of the message prior to its disappearance. Continue Reading Snapchat Settles FTC Charges

In a closing letter declining to bring enforcement action against shoemaker Cole Haan, FTC staff stated that it believes “Pins” on Pinterest featuring a company’s products can constitute an endorsement of those products, and that if the pins are incentivized by the opportunity to win a significant prize in a contest, contestants should be instructed to label their pins appropriately. 

The closing letter follows an investigation into whether Cole Haan violated Section 5 of the Federal Trade Commission Act in connection with its “Wandering Sole” Pinterest Contest.  Section 5 of the FTC Act protects consumers from “unfair or deceptive acts or practices.”  Pursuant to its Section 5 authority, the FTC requires disclosure when there exists a connection between a product endorser and the seller of the advertiser product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience). 

For a chance to win a $1,000 shopping spree, Wandering Sole contestants were instructed to create Pinterest boards that included five re-pins of shoe images from Cole Haan’s Wandering Sole Pinterest Board.  According to the FTC, these re-pinned images featuring Cole Haan shoes constituted product endorsements that were “incentivized by the opportunity to win” a shopping spree, therefore creating a material connection requiring disclosure.  The contest rules directed contestants to caption each pin with “#WanderingSole,” but the FTC determined that the hashtag was not adequate in communicating the material connection — i.e., financial incentive — between Cole Haan and its contestants.  The FTC concluded that “entry into a contest to receive a significant prize in exchange for endorsing a product through social media constitutes a material connection that would not reasonably be expected by viewers of the endorsement.”Continue Reading FTC Cole Haan Closing Letter: Encouraging Pinterest “Pins” in a Contest Can Trigger Endorsement Guidelines

FDA has previously included claims made on Facebook or other social media platforms along with broader allegations of misbranding using a variety of sources in its enforcement letters . . . [b]y contrast, the present untitled letter focuses solely on a single statement on a Facebook page, and does not take issue with any statements outside the Facebook page.
Continue Reading FDA Issues Untitled Letter Focused On Promotional Claims On Facebook

On January 13, 2014, FDA issued a draft guidance document entitled “Fulfilling Regulatory Requirements for Postmarketing Submissions of Interactive Promotional Media for Prescription Human and Animal Drugs and Biologics.” This draft guidance addresses the procedural topic of submitting Forms FDA 2253 and 2301 when firms use social media such as blogs, microblogs, social

The FTC has denied AssertID’s request to recognize a new method for obtaining verifiable parental consent for the online collection, use, and disclosure of personal information from children under 13.  The application was the first of its kind to be filed since the FTC added a voluntary parental consent approval process to its revised rule implementing

Last week, dating website PlentyOfFish withdrew its offer to buy bankrupt rival True.com, citing concerns raised by Texas Attorney General Greg Abbott that the sale would violate True.com’s privacy policy and expose its members to unexpected privacy risks.  Two weeks ago, Abbott filed an objection in U.S. Bankruptcy Court to block the proposed transfer of True.com’s membership database, which contains personal information about the website’s 43 million subscribers.  True.com has been in Chapter 11 bankruptcy proceedings since 2012.

The Texas Attorney General objected to the proposed sale on the grounds that that it was inconsistent with True.com’s privacy policy, which Abbott argued “contains ambiguities as to whether Customers will have a right to opt-out or opt-in to consent to the transfer of their [personal information].”  As part of the bankruptcy proceeding, True.com had entered into an Asset Purchase Agreement with PlentyOfFish, another popular dating website, under which PlentyOfFish would gain access to True.com’s extensive database of members’ personal information.  But last week, PlentyOfFish withdrew from the Asset Purchase Agreement, citing the Texas Attorney General’s objection.  In a letter filed with the court on October 23, PlentyOfFish stated that the transfer of True.com’s customer information “do[es] not appear to be legal, valid and effective,” and that the sale “appears to violate Seller’s privacy policy which affects and binds Seller’s assets.”  Markus Frind, the CEO and founder of PlentyOfFish, addressed the problem candidly in his blog, asking “Who in their right mind is going to buy a dating site with 43 million members if you are not allowed access to those members?” Continue Reading Texas AG Objections To Transfer of Personal Data Demonstrate Significance of Privacy Policy Disclosures

Earlier this month, we blogged about the California Senate’s passage of the bill titled “Privacy Rights for California Minors in the Digital World”, which prohibits certain targeted advertising to California minors and requires that minors be allowed to delete materials they have posted online.  Yesterday, California Governor Jerry Brown signed the legislation, and it

New Jersey has enacted restrictions on the ability of employers to access employees’ social media accounts, becoming the twelfth state to enact such legislation. More than 30 state legislatures have considered bills on the topic in 2013, according to the National Conference of State Legislatures.

New Restrictions in New Jersey

New Jersey’s new law, signed by Governor Chris Christie on August 29 and effective December 1, generally prohibits employers from requiring or requesting that employees or prospective employees “provide or disclose any user name or password, or in any way provide the employer access to, a personal account through an electronic communications device.” Employers also may not require individuals to waive the law’s protections or retaliate against individuals who refuse prohibited requests or file complaints with the Commissioner of Labor and Workforce Development about violations of the law. An earlier version of the law, passed by the legislature but vetoed by Gov. Christie, also would have allowed aggrieved individuals to file civil suits for injunctions, damages, and reasonable attorneys’ fees and court costs.Continue Reading New Jersey Restricts Employer Access to Employees’ Personal Online Accounts

Last Friday the California Senate unanimously passed legislation titled, “Privacy Rights for California Minors in the Digital World,” which prohibits certain types of marketing to minors (defined as a natural person under the age of 18 residing in California) and allows minors to delete materials they have posted online.  The bill, which already cleared the California Assembly, now has been sent to Governor Jerry Brown for approval.  If signed into law, the legislation would be effective beginning January 1, 2015. 

The bill, S.B. 365, which was introduced by Senator Darrell Steinberg, adds two new sections to the California Business & Professions Code.

Section 22580 would:

  • Prohibit an operator of a website, online service or application, or mobile application that is directed to minors from marketing or advertising on the service or application certain enumerated products or services that minors cannot otherwise legally purchase or use.  While some of these products and services may be obvious—e.g., alcohol, firearms, tobacco, and obscene materials—others—e.g., tanning and etching cream that is capable of defacing property—may be less so.  
  • Prohibit an operator of a website, online service or application, or mobile application from marketing or advertising the enumerated products or services where the operator has actual knowledge a minor is using its service or application, if the marketing or advertising is directed to that minor based on information specific to the minor such as profile, activity, address, or location, but excluding IP addresses and product identification numbers.  The operator shall be deemed in compliance with this provision if it takes reasonable actions in good faith designed to avoid marketing or advertising under these circumstances.
  • Prohibit an operator of a website, online service or application, or mobile application that is directed to minors or who has actual knowledge that a minor is using its service or application from knowingly using, disclosing, or compiling the personal information of a minor (or allowing a third party to do so) with actual knowledge that such activity is for purposes of marketing or advertising the enumerated products or services to that minor. 
  • These prohibitions do not apply, however, to the incidental placement of products or services embedded in content, if the content is not distributed by or at the direction of the operator primarily for the purposes of marketing and advertising the enumerated products or services.
  • Additionally, “marketing or advertising” is defined to require an “exchange for monetary compensation” in order “to make a communication to one or more individuals, or to arrange for the dissemination to the public of a communication, about a product or service the primary purpose of which is to encourage recipients of the communication to purchase or use the product or service.”  Thus, social media content or applications that only promote an enumerated product or service without paid placement would not fall within the scope of the bill. 

Continue Reading CA Legislature Passes Bill Establishing Online Protections for Minors