2H 2018 Quick Links, Part 5 (Privacy, Advertising, Consumer Reviews)


* Winston Smith v. Facebook, No. 17-16206 (9th Cir. Dec. 6, 2018): “the connection between a person’s browsing history and his or her own state of health is too tenuous to support Plaintiffs’ contention that the disclosure requirements of HIPAA or section 1798.91 apply.”

* Kash Hill, The Wildly Unregulated Practice of Undercover Cops Friending People on Facebook

* Nieman Lab: More than 1,000 U.S. news sites are still unavailable in Europe, two months after GDPR took effect

* GDPR shifted ad dollars away from targeted ads and into non-targeted ads (yay?), and from Europe to the US.

* Techdirt: Just As Expected: GDPR Has Made Google Even More Dominant In Europe

* San Francisco Chronicle: “Data privacy rules have big beneficiary: lawyers”

* Techdirt: We’re Bad At Regulating Privacy, Because We Don’t Understand Privacy

* Reuters: “Europe’s new data privacy law has put a small army of tech firms that track people online in jeopardy and is strengthening the hand of giants such as Google and Facebook in the $200 billion global digital advertising industry.”

* AP: Google tracks your movements, like it or not

* State v. Ahmed,  2018 Minn. App. LEXIS 490 (Minn. Ct. App. Dec. 17, 2018). Prosecution under Minnesota’s sui generis non-consensual pornography crime even though the photo’s provenance was unknown. “the record here includes no direct evidence that, at the time respondent initially posted the image in question, she actually knew that S.C. did not consent to dissemination or that respondent had actual knowledge of S.C. having asserted an expectation of privacy. But on this record, there is evidence sufficient to establish probable cause that respondent should have known of S.C.’s nonconsent and her expectation of privacy during the time period over which respondent disseminated the image using several social-media accounts.”

For more on prosecutions of nonconsensual pornography cases, see my compilation.

*  U.S. v. Ackell, 2018 WL 5275211 (1st Cir. Oct. 24, 2018). Anti-stalking prosecution based on sextortion not covered by the First Amendment (we inventory this case in the compilation linked above).


* Another peak 2018 moment: wannabe Instagram influencers are making unsponsored posts that look like ads, because faking sponsorships makes them MORE CREDIBLE (?!) to readers & future sponsors. ¯\_(ツ)_/¯

* Wired: Inside the Pricey War to Influence Your Instagram Feed

* Christina Sauerborn, Note, Making the FTC 🙂 : an approach to material connections disclosures in the emoji age, 28 Fordham Intell. Prop. Media & Ent. L.J. 571 (2018):

In examining the rise of influencer marketing and emoji’s concurrent surge in popularity, it naturally follows that emoji should be incorporated into the FTC’s required disclosures for sponsored posts across social media platforms. While current disclosure methods the FTC recommends are easily jumbled or lost in other text, using emoji to disclose material connections would streamline disclosure requirements, leveraging an already-popular method of communication to better reach consumers. This Note proposes that the FTC adopt an emoji as a preferred method of disclosure for influencer marketing on social media.

My response: ¯\_(ツ)_/¯. Creating a brand new symbol that consumers recognize is hard, and calling it an emoji doesn’t lessen that challenge. Furthermore, we don’t need Unicode to do this; each platform could create its own ad symbol and even automatically replace or supplement keywords like #ad if they cared. They don’t.

* MediaPost: Facebook Removes Some Targeting Options To Settle Civil Rights Investigation

* Inc.: A Florida town tried to earn a few bucks by (temporarily) changing its name from “Mayo” to “Miracle Whip”–but along the way it had to break the law & fool its citizens.

* The Hustle: The hottest advertising trend of 2018? Billboards.

* Vox: 400 people got a Domino’s tattoo for free pizza. Why do brands promote these body-altering stunts? See my 2005 contracts law exam.

* Ad Law Access: “NAD determined that the shopping guide did not constitute “national advertising” for a few key reasons. First, the content was created by writers who did not know whether or not the company would receive any affiliate revenue based on purchases of the recommended products. Second, neither the retailers nor the brands mentioned in the guides had any input in what was said about the products. And, third, the links were added to the shopping guide after the content was written. “In sum,” the NAD wrote, “the content was created independently of and prior to the addition of affiliate links to the article.” Thus, the statements in the shopping guide weren’t ads and BuzzFeed wasn’t responsible for substantiating claims about the products that were reviewed.

This decision provides a roadmap for other companies that use affiliate links. Simply calling something “editorial” is not going to be enough to escape scrutiny under advertising laws. Instead, companies must have procedures in place to ensure that there is a clear separation between editorial decisions and revenue and that the companies whose products are being reviewed cannot influence the content. It’s also important to clearly disclose the affiliate relationship, as BuzzFeed did here. The NAD’s decision suggests that if companies get this wrong, they may be required to substantiate any claims they make about the products they review.”

Consumer Reviews

* Amato v. Bermudez,  2018 WL 3689494 (Cal. App. Ct. Aug. 3, 2018):

Under the broadly construed anti-SLAPP statute, consumer reviews of businesses open to the public are routinely viewed as matters of public interest….  the trial court correctly concluded that defendants’ criticisms of Amato’s business and his business practices, posted on publicly accessible commercial sites, were matters of interest to members of a significant subset of the general public which could directly impact potential consumers considering patronizing CFR, and thus were protected by the anti-SLAPP statute…

Courts and commentators have recognized that readers of online message boards, blogs and reviews expect to see strongly worded opinions, not objective facts…. Defendants’ criticisms of Amato’s management or programming methods, and his inability to coach or instruct (including the photo), are clearly statements of opinion.

* FTC: First Consumer Review Fairness Act case takes on promoter’s “big bucks on Amazon” claim. The CRFA claim is added onto an enforcement action motivated by other concerns. This will probably be the FTC’s modus operandi for other FTC enforcement actions of the CRFA. More background on the CRFA.

* Recode: Glassdoor CEO Robert Hohman explains why reviews with sexual harassment allegations don’t get removed

* Clay Calvert, Gag Clauses and the Right to Gripe: The Consumer Review Fairness Act of 2016 & State Efforts to Protect Online Reviews From Contractual Censorship, 24 Widener L. Rev. 203 (2018).