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FTC Approves Final Order with AmeriFreight: Websites Must Disclose Endorsements

Earlier this year, AmeriFreight, a Georgia-based auto shipment broker, settled with the Federal Trade Commission (FTC) over charges that the company posted customer reviews on its website while failing to disclose that it had given cash discounts to customers in exchange for the reviews.  According to the FTC complaint, AmeriFreight touted on its website homepage that it had “more highly ranked ratings and reviews than any other company in the automotive transportation business” and that a majority of the online reviews on  AmeriFreight’s website failed to disclose that the reviewers were compensated $50 for posting reviews and were also eligible to receive an additional $100 if selected for the “Best Monthly Review Award.”  The FTC charged that AmeriFreight, by failing to disclose the incentives it had given to reviewers, had misrepresented its customer reviews as those of unbiased consumers.  The FTC’s position can be summed up best by the following quotes...

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Junk Fax Act Compliance: One Week Left to Request a Waiver for Non-Compliance

Thursday, April 30, 2015, marks the last day a business can request a retroactive waiver for failing to comply with certain fax advertising requirements promulgated by the Federal Communications Commission (FCC). The scope of these requirements was clarified on October 30, 2014, when the FCC issued an Order (2014 Order) under the Junk Fax Prevention Act of 2005 (Junk Fax Act). The 2014 Order confirms that senders of all advertising faxes must include information that allows recipients to opt out of receiving future faxes from that sender. The 2014 Order clarifies certain aspects of the FCC’s 2006 Order under the Junk Fax Act (the Junk Fax Order). Among other requirements, the Junk Fax Order established the requirement that the sender of an advertising fax provide notice and contact information that allows a recipient to “opt out” of any future fax advertising transmissions. Following the FCC’s publication of the Junk Fax Order, some businesses interpreted the...

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The Consumer Privacy Bill of Rights Redux

On February 27, 2015, the Obama White House released an “Administration Discussion Draft” of its Consumer Privacy Bill of Rights Act of 2015 (Proposed Consumer Privacy Act).  The Proposed Consumer Privacy Act revises and builds on the “Consumer Privacy Bill of Rights” that the Obama White House released in its 2012 Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy report. As described during President Obama’s January 12 visit to the Federal Trade Commission (FTC), the Proposed Consumer Privacy Act identifies seven “basic principles to both protect personal privacy and ensure that industry can keep innovating.”   These seven principles are: Transparency (§101): Transparency is a principle frequently cited in guidance from the FTC, as well as self-regulatory framework, such as the Digital Advertising Alliance’s cross-industry code for interest based-advertising. The Proposed...

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The FTC Did Some Kid-ding Around in 2014

2014 was a busy year for the Federal Trade Commission (FTC) with the Children’s Online Privacy Protection Act (COPPA).  The FTC announced something new under COPPA nearly every month, including: In January, the FTC issued an updated version of the free consumer guide, “Net Cetera:  Chatting with Kids About Being Online.”  Updates to the guide include advice on mobile apps, using public WiFi securely, and how to recognize text message spam, as well as details about recent changes to COPPA. In February, the FTC approved the kidSAFE Safe Harbor Program.  The kidSAFE certification and seal of approval program helps children-friendly digital services comply with COPPA.  To qualify for a kidSAFE seal, digital operators must build safety protections and controls into any interactive community features; post rules and educational information about online safety; have procedures for handling safety issues and complaints; give parents basic safety controls over their...

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Privacy and Data Protection: 2014 Year in Review

In 2014, regulators around the globe issued guidelines, legislation and penalties in an effort to enhance security and control within the ever-shifting field of privacy and data protection. The Federal Trade Commission confirmed its expanded reach in the United States, and Canada’s far-reaching anti-spam legislation takes full effect imminently. As European authorities grappled with the draft data protection regulation and the “right to be forgotten,” the African Union adopted the Convention on Cybersecurity and Personal Data, and China improved the security of individuals’ information in several key areas. Meanwhile, Latin America’s patchwork of data privacy laws continues to evolve as foreign business increases. This report furnishes in-house counsel and others responsible for privacy and data protection with an overview of key action points based on these and other 2014 developments, along with advance notice of potential trends in 2015. McDermott will...

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Join Us at BAA’s Marketing Law Conference for a Panel Discussion on Developments in Mobile Marketing

For those Of Digital Interest readers attending the Brand Activation Association's (BAA) 36th Annual Marketing Law Conference, please join McDermott partner - and Of Digital Interest editor - Julia Jacobson as she moderates a panel titled “New and Unexpected: Developments in Mobile Marketing - Mobile Tracking, Apps and Mobile Payments.” She will be joined by Ira Schlussel of HelloWorld, Inc., Paul Twarog of Google Inc. and co-moderator Terese Arenth. The panel session starts at 3:20 pm on Thursday, November 6.  We hope to see you there.

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Be Careful Who You Hire To Make Those Calls! Ninth Circuit Takes Expansive View of Vicarious Liability under the TCPA

A recent ruling by the Ninth Circuit took an expansive view of vicarious liability under the Telephone Consumer Protection Act (TCPA).  Reversing the district court’s grant of summary judgment, the court in Gomez v. Campbell held that a marketing consultant could be held liable for text messages sent in violation of the TCPA, even though the marketing consultant itself had not sent the texts and even though the texts were sent on behalf of the marketing consultant’s client, not the consultant itself. Among other things, the TCPA prohibits (with certain exceptions) the use of automatic telephone dialing systems in making calls to cellphones.  Both the Federal Communications Commission (FCC) and the courts have interpreted this provision to bar the use of automated systems to send unsolicited texts to cellphones.  In Gomez, the Campbell-Ewald Company had been hired by the Navy to conduct a multimedia recruiting campaign.  Campbell-Ewald had then outsourced the...

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France About to Embark on a Cookies Sweep Day

Impending sweep day to verify compliance with guidelines on cookies During the week of September 15–19, 2014, France’s privacy regulator, the Commission Nationale de l'Informatique et des Libertés (CNIL), is organizing a “cookies sweep day” to examine compliance with its guidelines on cookies and other online trackers. Starting in October 2014, the CNIL will also be conducting onsite and remote inspections to verify compliance with its guidelines on cookies. Depending on the findings of the sweep and inspections, the CNIL may issue warnings or financial sanctions to non-compliant websites and applications. Investigations gaining momentum France is not the only country stepping up its data privacy efforts.  Parallel sweeps to the one conducted by the CNIL in September 2014 will be undertaken simultaneously by data protection authorities across the European Union.  The purpose of the coordinated action is to compare practices on the information given by...

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Digital Marketing Minute: Bot Fraud Hampers Digital Advertising

Fraudulent web traffic is an increasingly common headache for digital marketers who work with advertising networks to deliver online ads.  A predominant source of fraudulent web traffic is software applications known as “bots,” which hijack consumers’ computers and redirect browsers to a website delivering online ads.  Bots can then automatically generate false ad views and false clicks, as well as automatically generate false user profiles or enter other information into a website’s form fields.  Despite prohibitions on bot-type activity in their terms of use, website operators have not been particularly successful in stopping bot fraud.  According to the Interactive Advertising Bureau, an estimated 36 percent of all web traffic is bot generated. Many in the digital advertising industry are concerned about this trend, because advertisers often pay for digital advertising based on online ad views and clicks, and fraudulent views and clicks could be causing...

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Digital Marketing Minute: No More Like Gates

We are pleased to present this inaugural post of the Digital Marketing Minute.  Each week will provide a short post on some news in the digital marketing world.   This week’s post is about a change on Facebook’s platform that affects how marketers conduct promotions. In an August 7 post on its Developers blog page, Facebook announced that, effective November 5, 2014, use of a “Like Gate,” which requires Facebook users to “Like” a page before participating in a brand’s promotional activity, is not allowed.  In other words, marketers cannot require consumers to “Like” a brand page before entering a sweepstakes or a contest, participating in an offer or accessing certain content. Facebook reasons that banning the Like Gate will help “ensure quality connections and help businesses reach the people who matter to them” and that consumers “'Like' pages because they want to connect and hear from the business, not because of artificial incentives” (see...

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