H1 2012 Quick Links, Part 3 (Advertising & Privacy)

By Eric Goldman


* Gomez-Jimenez v. New York Law School: False advertising lawsuit against NYLS dismissed. Rebecca’s coverage.

* Marketing Land: Pew Survey: 68% View Targeted Ads Negatively; 59% Have Noticed Targeting.

Partially related: Search Engine Land: Pew Report: 65% View Personalized Search As Bad; 73% See It As Privacy Invasion.

* Britain’s ASA holds an advertiser liable for user-posted YouTube videos.

Related: Cogent Solutions Group, LLC v. Hyalogic, LLC, 2012 WL 1083513 (E.D. Ky. March 30, 2012): “CSG cannot meet the high threshold of clear and convincing evidence to show that Hyalogic was responsible for posting the YouTube video. Hyalogic contends that the video was posted by an unrelated Malaysian company that was “acting independently” and uploaded the YouTube video to the Internet “without permission.”…CSG argues that Hyalogic’s website provides contact information for many international retail partners, including partners located in Malaysia….This listing of “retail partners” referencing companies in Malaysia on Hyalogic’s website merely supports a weak inference; it does not prove by clear and convincing evidence that Hyalogic caused the YouTube video to be uploaded to the Internet when the affidavit of Landis directly refutes this assertion. Landis states, “Hyalogic did not cause that video to be posted on YouTube—it was posted, without permission, by [a] user with the screen name “purewhiteclean,” operated by a Malaysian company which sells Hyalogic’s products (the company is otherwise unrelated to Hyalogic).”…CSG offers no evidence, other than its own speculation, to show that this company is related to Hyalogic.”

* AdAge: Class action lawyers are trolling through NAD proceedings looking for cases.

Related: Technology Review: Why Privacy Is Big Business for Trial Lawyers

* More evidence that search advertising provides substantial incremental lift in organic search referrals. Related from Search Engine Land: “even when advertisers show up in the number one organic search result position, 50% of clicks they get on ads are not replaced by clicks on organic search results when the ads don’t appear.”

* Marketing Land: Study suggests clicks on display ads have almost no correlation with conversion.

* AdWeek: SheKnows.com editors caught encouraging staffers to click on ads shown on the website.

* Ascentive settles false advertising lawsuit that it was “scareware” for $9.6M.

* Adscend settles “clickjacking” lawsuit by Facebook. It also settled with the Washington state regulators for $100k, which Adscend claimed was a win for it.


* Slaughter v. Aon Consulting, 10C-09-001 (Del. Superior Ct. Jan. 31, 2012). Dismissing a class action over a data breach because of “nationwide credit card theft trends, the potentially catastrophic effect of data breaches, and Chinese hacking methods. While Stump raises reasons for concern, his report never states Aon’s breach caused Plaintiffs’ actual harm, nor does it show there is a probability that harm will occur. No named plaintiff has suffered an actual, demonstrated injury.”

The court continues: “In summary, the string of dismissals is unbroken. No court has allowed a similar case to go to trial. The fact that there is a string of cases is troubling. Perhaps, the legislature or the Restatement needs to consider this problem. Meanwhile, the court is unaware of a similar case where a plaintiff has gotten past the dismissal stage.”

* U.S. v. Fulford, 2012 WL 750548 (S.D. Ala. March 7, 2012):

What we do know is that the Internet is a medium through which people can and routinely do assume fictitious identities. Some do it to heckle professional athletes or disparage musicians. Others do it to air unpopular political or social views, thus allowing their voices to be heard from behind a comforting veil of anonymity. Still others may fabricate a persona on the Web to promote nefarious objectives, such as trying to conceal unlawful activity or endeavoring to defraud or trick other users into providing confidential information, sending money, or distributing pornographic images. And, of course, law enforcement agents regularly go undercover on the Internet to identify and investigate criminal activity. The point is not whether, normatively speaking, Internet anonymity is inherently good or bad. The point is that it is pervasive. As a practical reality, surfing the Internet is akin to attending a masquerade ball in the land of Oz on Halloween. No one is who they seem to be.

* NYT: Verifying Ages Online Is a Daunting Task, Even for Experts

* Can “anonymous” website commenters be reidentified through linguistic analysis? If so, this could be huge.

* NY Times: Panopticon redux: kids have toned down their Spring Break revelries due to the ubiquity of cellphone cameras.

* To help prop up publisher paywalls, Google puts together an offering that makes consumers’ private information the price of admission to paywalled content. AdWeek’s coverage. Wired’s coverage.

* In re Facebook Privacy Litigation has been appealed to the 9th Circuit. Prior blog post.

* NY Times: On Facebook, the Semantics of Visibility vs. Privacy

* Valentine v. Wideopen West Finance, LLC, 2012 WL 1021809 (N.D. Ill. March 26, 2012). A deep packet inspection (DPI) case gets sent to arbitration.

* The FTC busts Wyndham for lax security based on language that is found in thousands of privacy policies. The FTC has been busting companies for a number of years for lax security, but I’m still questioning the basic premise of these enforcement actions.

* FCC ruling in Google Street View wi-fi case. NY Times coverage (1, 2).

* SJ Mercury News: Is an FTC investigation of Google’s Safari/Google+ mistake coming imminently?

* ZDNet: State AGs affix target to online privacy issues

* MediaPost: the Bose v. Interclick case ends a little mysteriously. Prior blog post.

* IAPP on the F.A.A. v. Cooper ruling.

* The FTC approved its RockYou settlement.

* The average website has 14 third party tracking tags.