Q2 2016 Quick Links, Part 4 (Marketing, Privacy, Contracts)


* Google will no longer run ads for payday lenders.

* GALA: Brazil Enacts New Ambush Marketing Laws in Advance of Rio 2016 Olympic Games

* Slate: The Do Not Call list was supposed to defeat telemarketers. Now scammy robocalls are out of control. What happened?

* AdWeek: Publishers Are Largely Not Following the FTC’s Native Ad Guidelines

* Jezebel: Scott Disick Accidentally Reveals the Truth Behind His Instagram Product Promotion

* Slate: The Federal Election Commission has no idea how to handle political astroturfing.

* Free Range Content, Inc. v. Google Inc., 2016 WL 2902332 (N.D. Cal. May 13, 2016). This lawsuit involves Google’s withholding of AdSense balances when it terminates AdSense publishers. Some of the plaintiffs’ claims survive a motion to dismiss.

* ‘Spam King’ Sanford Wallace Sentenced to 2½ Years for Facebook Scheme. Yes, this is a 2016 news item.


* People v. Delta Airlines (Cal. App. Ct.).

state enforcement of the OPPA’s privacy policy requirements as applied to Delta’s Fly Delta mobile application is expressly preempted by the ADA. To compel Delta to comply with the OPPA would effectively interfere with the airline’s “selection and design” of its mobile application, a marketing mechanism “appropriate to the furnishing of air transportation service,” for which state enforcement has been held to be expressly preempted by the ADA.

This was supposed to be the state AG’s flagship test case for applying the OPPA’s privacy policy requirement to mobile apps. Losing on federal preemption after 4 years of fruitless litigation is extremely embarrassing for Kamala Harris’ office.

* Campbell v. Facebook, Inc., 2016 WL 2897936 (N.D. Cal. May 18, 2016). In a case over Facebook scanning URLs that users sent in private messages, the court certifies a class for injunctive relief only.

* Daphne Keller and Bruce Brown, Europe’s Web Privacy Rules: Bad for Google, Bad for Everyone

* Softpedia: EU Exploring Idea of Using Government ID Cards as Mandatory Online Logins. Back to the 1990s fantasy/dystopia of Internet drivers’ licenses!

* Khan v. Children’s National Health System, 2016 WL 2946165 (D. Md. May 19, 2016): “The Court therefore concludes that in the data breach context, plaintiffs have properly alleged an injury in fact arising from increased risk of identity theft if they put forth facts that provide either (1) actual examples of the use of the fruits of the data breach for identity theft, even if involving other victims; or (2) a clear indication that the data breach was for the purpose of using the plaintiffs’ personal data to engage in identity fraud.”

Online Contracts

* Lutz v. Turner Broadcasting System, Inc., 2016 WL 2643013 (N.D. W.V. May 9, 2016) (footnotes omitted):

West Virginia law upholds the use of “clickwrap” or “click-through” agreements, which require users to consent to any terms and conditions through the use of internet web-pages. State ex rel. U-Haul Co. v. Zakaib, 752 S.E.2d 589, 594 (W. Va. 2013). In Zakaib, the Supreme Court of Appeals of West Virginia found no difference between electronic contracts and tangible paper agreements, concluding that electronic contracts cannot be denied enforcement solely based on their electronic format. Id. Instead, courts are required to interpret and apply the same common law rules to electronic agreements as those that have been applied to oral and written agreement for hundreds of years. Id. at 595.

Lutz, however, claims that the waiver was not presented to her in a “clear and concise manner” because it “was only accessible by scrolling through [a computer maintained by the defendants], at a makeshift table, after only accessing this waiver through [her] Facebook account.” According to Lutz, these circumstances prevented her from having any appreciation for what she was purportedly reading and signing. Finally, she claims that she was only at the waiver table for a very brief time, clearly not long enough to read the waiver, and that no employee of the Funhouse read or explained the agreement to her.

Even taking these claims as true, Lutz’s reasoning lacks any legal basis for finding the waiver invalid. She is college educated and makes no claim that she could not comprehend the language contained in the waiver. Further, she fails entirely to provide any factual support that the circumstances somehow prevented her from reading the waiver before she signed it. Clearly, had she chosen to do so, Lutz could have taken adequate time to scroll through the one-and-a-half page waiver.

The fact that Lutz accessed the waiver through her Facebook account, on the defendants’ computer, and at a makeshift table is wholly irrelevant. Moreover, the fact that she was at the waiver table for only a brief time is a result of her decision not to read the waiver, not the other way around. Indeed, Lutz makes no assertion that she was rushed in any way and admits there was no line when she arrived at the Funhouse. Finally, Lutz’s contention that the employees failed to read the waiver to her lacks merit, as there is no legal requirement that an employee do so.

* Oracle v. Rimini Street, Inc., 2016 WL 3344377 (D. Nev. June 13, 2016). I last blogged this case in 2010! This is primarily a case over scraping customer support manuals from a password-protected customer support website. Rimini Street lost a jury trial in 2015, and the jury awarded Oracle over $14M in damages based on California and Nevada’s state computer crimes laws. The court upholds the jury verdicts. The most interesting part of this opinion relates to Rimini Street’s constitutional challenge to the computer crime laws:

Defendants’ argument effectively asks the court whether they can be found liable under a criminal statute that allows for civil penalties for taking information from a website without authorization when the power to grant, restrict, change, or revoke that authorization is solely within the control of the plaintiff seeking damages under the statute. The short answer is yes. [cite to Craigslist v. 3Taps].