Social Media

Last Thursday, the United States Court of Appeals for the Ninth Circuit affirmed dismissal of claims for violations of the Electronic Communications Privacy Act (“ECPA”), holding that the plaintiffs had failed to allege Facebook and Zynga disclosed the “contents” of a communication, a necessary element under the Act.

The court’s ruling applies to the consolidated cases In re Zynga Privacy Litig. and In re Facebook Privacy Litig., in which plaintiffs alleged that the social network and popular gaming company disclosed personally identifiable information to third parties.  Continue Reading Ninth Circuit Holds Facebook IDs and URLS Not “Content” under ECPA

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…

Continue Reading FDA Issues Draft Guidance on Postmarketing Requirements for Promotion on Social Media

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…

Continue Reading FTC Denies First Request For More Flexible Parental Consent Methods

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…

Continue Reading CA Governor Signs Bill Providing Online Protections For Minors

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