2H 2022 Quick Links, Part 1 (Marketing, Privacy)

Marketing

* FTC cracks down on live reads on the radio.

* NY Times: Meta Agrees to Alter Ad Technology in Settlement With U.S.

* Comcast v. Comptroller, No. C-02-cv-02-10509 (Md. Cir. Ct. Oct. 21, 2022). Court strikes down Maryland’s Digital Advertising Tax Act on First Amendment, Dormant Commerce Clause, and other grounds (including the Internet Tax Freedom Act).

* Turtle Island Foods SPC v. Soman, No. 4:19-cv-00514-KGB (E.D. Ark. Sept. 30, 2022):

Tofurky prevails on the merits of its argument that that [sic] the speech it not inherently misleading. The labels’ use of the words Act 501 prohibits permits Tofurky to convey meaningful, helpful information to consumers about the products they are purchasing, and Tofurky’s repeated indications that the food products contained in these packages contain no animal-based meat dispel consumer confusion….The State appears to believe that the simple use of the word “burger,” “ham,” or “sausage” leaves the typical consumer confused, but such a position requires the assumption that a reasonable consumer will disregard all other words found on the label….the State has not come forward with evidence of any broad marketplace confusion around plant-based meat alternatives to bolster its claim….

even though the State has defined certain terms in Act 501, those definitions do not serve as trademarks on these terms. The Court concludes that the simple use of a word frequently used in relation to animal-based meats does not make use of that word in a different context inherently misleading

* dotStrategy Co v. Meta Platforms, Inc., 2022 WL 17248983 (9th Cir. Nov. 28. 2022):

dotStrategy does not challenge the district court’s conclusion that Facebook never expressly “represented that it would not charge for invalid impressions” but argues that it was misleading “for Facebook to say that it will not charge for invalid clicks” but then “charge for impressions delivered to fake accounts.” But Facebook clearly explained the differences between the charging practices to advertisers, who had the general option to choose under which system they would be billed. A reasonable advertiser would also know that it was being charged a much higher rate for clicks than impressions. And, as the district court noted, “[n]o reasonable consumer would have been misled by the fact that Facebook required its users to use the name they go by in everyday life to believe that Facebook guaranteed that every account on its platform necessarily did so.” Indeed, Facebook expressly disclosed that “fake” accounts make up an estimated 5% of its monthly active users.

* Changing The World Films, LLC v. Parker, 2022 WL 17403220 (D.D.C. Dec. 2, 2022):

Nor does personal jurisdiction arise out of the Film Defendants’ so-called “advertising strategy,” which allegedly “featured a significant push on social media[ ] targeting Washington, DC residents via Instagram and Facebook.” Aside from a single post that defendant Parker made to his personal Instagram profile—“THIS FRIDAY Jan. 15th, 2021 – Get your tickets for ‘American Skin’ in the following theaters,” Nathaniel Parker (@origi_nate), Instagram, https://www.instagram.com/p/CJ4QyO2H3ZF/—the plaintiffs do not offer any other instances in which the defendants engaged in D.C.-targeted social media advertising. Conclusory statements about a targeted advertising campaign are insufficient to establish jurisdiction.

Moreover, it is a stretch to characterize the single Instagram post as a D.C.-targeted advertisement. One slide of the Instagram posting lists theaters showing American Skin, including the “Berkeley Plaza 7 Theatre – Martinsburg, WV” under a header titled “Washington, DC.” See Nathaniel Parker (@origi_nate), Instagram, https://www.instagram.com/p/CJ4QyO2H3ZF/. The post also encourages viewers to “please support local Black Owned restaurants during your watch parties for the film,” and lists restaurants in many major metropolitan areas, including D.C. Even so, this posting, which was available to viewers everywhere, is “more like a broad national advertising campaign” than targeted advertising sufficient to establish personal jurisdiction in this District over the defendants. Put another way, by listing D.C. as just one of 15 or more major cities somewhat near theaters showing the film, the Instagram post more resembled “an advertisement placed in a national newspaper that happens to circulate in the [District]” than “an advertisement placed specifically in the [District’s] local paper.”

* Pelkowski v. Hovermann, 2021 WL 9032222 (E.D.N.Y. Sept. 9, 2021):

the context and tone of the post itself suggest snarky opinion, which is further bolstered by the fact that it appears in a social media post featuring a string of hashtags, colorful emojis, and snarky writing…

the inclusion of the surveillance video along with the hyperbolic caption further supports a finding that a reasonable reader would find the post to be nonactionable conjecture…

[However,] “He alleges that the defendants’ use of his image on social media, without his consent, in conjunction with hashtags and promotional language for the shop abused his image to achieve publicity, gain interest in their store, drive up website traffic, and receive commercial gain. Indeed, the post contains hashtags to the name of the shop as well as hashtags stating “#allarewelcome, #boutique, #small, #smallbusiness, #shopsmall, #shoplocal.” The post was published on the shop’s social media account, a platform often used for advertising and promotional purposes. One of the comments underneath the post stated, “Thanks to Rear Admiral ‘Stash’, I’ve learned of a new kinky boutique that I need to buy things from!” Although there may have been other objectives behind the post, given the liberal construction of the terms “for advertising purposes,” plaintiff has plausibly plead that this post, taken in its entirety, meets this prong of §§ 50– 51. “

Privacy

* In re Meta Pixel Healthcare Litigation, 2022 WL 17869218 (N.D. Cal. Dec. 22, 2022). “The key question at the heart of this motion is whether a reasonable user would have understood from Meta’s policies that Meta collects the health information at issue here….I do not believe that a reasonable user would have understood that Meta may intercept their health information.”

* Williams v. What If Holdings, 2022 WL 17869275 (N.D. Cal. Dec. 22, 2022):

the question boils down to whether ActiveProspect was an independent third party hired to eavesdrop on What If’s communications, or whether ActiveProspect’s software was merely a tool that What If used to record its own communications with plaintiff. Our facts suggest the latter….a key distinction is whether or not the alleged third-party software provider aggregates or otherwise processes the recorded information, which might suggest that the software vendor independently “uses” the gathered data in some way….That recorded videos are hosted and accessed on ActiveProspect’s servers is part of how the software tool functions, and plaintiff makes no allegation that ActiveProspect or its TrustedForm product affirmatively engages with that data in any way other than to store it….In sum, the facts as pled show that TrustedForm functioned as a recorder, and not as an eavesdropper.

* Danfer-Klaben v. JPMorgan Chase Bank, N.A., 2022 WL 3012528 (C.D. Cal. Jan. 24, 2022): “the entire thrust of Plaintiffs’ allegations is that Defendant, after terminating its banking relationship with Plaintiffs, allegedly continued to access and share Plaintiffs’ personal information with unspecified third parties for profit. Plaintiffs in no way allege that Defendant’s disclosure to third parties was the result of a failure “to implement and maintain reasonable security measures,” and, as such, their claim falls entirely outside of the reach of the CCPA.”

* Hayden v. The Retail Equation, 2022 WL 2254461 (C.D. Cal. May 4, 2022):

the CCPA does not provide for a private right of action for §§ 1798.100(b), 110(c), and 115(d) and as such, Plaintiffs do not state a proper claim as they relate to violations under these sections…

Retail Defendants’ disclosure of consumers’ non-anonymized data was not a result of a failure to implement and maintain reasonable security measures, but was a business decision to combat retail fraud. As such, the provision is inapplicable because it is not alleged that Retail Defendants violated their duties as they relate to security procedures and practices.

the CCPA does not apply to non-California residents. As such, the out-of-state Plaintiffs did not have standing to bring CCPA claims against Retail Defendants.

* In re Arthur J. Gallagher Data Breach Ligation, 2022 WL 4535092 (N.D. Ill. Sept. 28, 2022)

Defendants also argue that May inadequately alleges that she is a “customer,” and that Defendants constitute “businesses,” under the CCPA. This argument fares no better. The CCPA defines “consumer” broadly as a “natural person who is a California resident,” and May is a California resident. Moreover, the May complaint plausibly alleges that Defendants meet the definition of “businesses” under the CCPA. The CCPA allows consumer actions to redress a “business’s violation of the duty to implement and maintain reasonable security procedures and practices.” Under the CCPA, “business” means an entity “that collects consumers’ personal information or on the behalf of which that information is collected and that alone, or jointly with others, determines the purposes and means of the processing of consumers’ personal information”. The May complaint sufficiently alleges that Defendants are “businesses” because, according to May, they collected her personal information.

* Christopher Yoo, The Overlooked Systemic Impact of the Right to Be Forgotten: Lessons from Adverse Selection, Moral Hazard, and Ban the Box

* Facebook and BrandTotal settled. The settlement agreement. Prior blog post.

* NY Times: Clearview AI, Used by Police to Find Criminals, Now in Public Defenders’ Hands. Not all uses of facial recognition are bad, but can we find a way to sort the good uses from the bad?