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Litigation Alert >> Internet Retailers Beware: NJ Truth-in-Consumer Contract, Warranty and Notice Act Impacts Online Terms and Conditions - Alert - 07/21/2016

New Jersey’s TCCWNA allows consumers to recover damages or civil penalties from retailers who use terms and conditions that violate the consumers’ clearly established legal rights. With the New Jersey courts’ generally broad, consumer-friendly construction of this act, and a statutory penalty of $100 per violation regardless of whether the consumer has suffered any actual harm, the act increasingly has become a favorite among plaintiffs’ class action counsel. Online retailers should actively review their terms and conditions, both to ensure compliance with New Jersey law and to be certain that those terms are constructed so as to afford the maximum protection available against these class action claims.

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Digital Media, Technology & Privacy Alert >> EU-U.S. Privacy Shield to Start Accepting Certifications August 1  - Alert - 07/13/2016

As of August 1, 2016, U.S. companies will be able to register to be on the Privacy Shield list and self-certify that they meet data protection standards set out by the new arrangement that exceed those under the old Safe Harbor. Businesses will need to carefully review these standards to ensure that they have mechanisms in place to ensure compliance, including procedures to respond promptly to consumer complaints and to cooperate, where necessary, with European Data Protection Authorities. Company registrations will need to be renewed every year.

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Digital Media, Technology & Privacy Alert >> Brexit May Complicate Privacy Issues for Ad Tech Companies - Alert - 06/30/2016

In the short term, there may not be many (or any) changes to privacy and data practices in the United Kingdom following Brexit. However, as the process proceeds and the EU further develops and implements new standards, it is possible that a divide will develop and expand between regulatory schemes in the United Kingdom and the rest of the EU. Companies operating in European jurisdictions should continue to monitor developments and be prepared for a more complicated privacy and data security compliance landscape to develop in Europe.

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SC Magazine // Breach: Before and After - Press Mention - 03/01/2016

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Digital Media, Technology & Privacy Alert >> Agreement on EU-U.S. Privacy Shield to Replace Safe Harbor Faces Hurdles - Alert - 02/04/2016

As with any negotiation, there are bound to be critics on both sides of the spectrum, and the new Privacy Shield has no shortage of critics. However, most parties agree that something must be done to balance the interests of EU citizens and the commercial needs of companies on both sides of the Atlantic. Some regulators have agreed to another respite until the end of February, in order to consider this deal, even though full implementation of the program will likely take longer. Other means of complying with the Data Protection Directive should continue to be considered. Meanwhile, companies that are involved in the transfer of EU personal data to the United States must watch developments in order to determine how to comply with the new Privacy Shield.

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Digital Media, Technology & Privacy Alert >> New FTC Report Highlights Ubiquity of Big Data and Contrasts Negative Impact Versus Substantial Benefits of Big Data - Alert - 01/11/2016

Given how the battle lines have been drawn in the big data debate, privacy advocates will likely assert that the report does not go far enough in protecting the privacy rights of individuals, while commercial interests will assert that the FTC does not sufficiently recognize the substantial economic and societal benefits to be reaped from big data. Going forward, every business should carefully evaluate their collection and/or use of big data in light of these issues.

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Digital Media, Technology & Privacy Alert >> Wyndham Settles FTC’s Data Breach Case After Ruling Reinforced FTC’s Authority - Alert - 12/17/2015

Wyndham’s settlement brings to an end one of the most significant challenges to the FTC’s broad authority to regulate data security matters (for another challenge, see a previously authored D&G alert here). The result is an emboldened FTC and new data security standards for companies to consider. The FTC, through its successful pursuit of Wyndham, is sending a clear message to companies that collect consumers’ personal information that they need to be vigilant in ensuring that they have sufficient data security practices and procedures in place to avoid FTC scrutiny in the event of a data breach.

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Digital Media, Technology & Privacy Alert >> Failure to Prove Probability of Harm from Alleged Data Breaches Dooms FTC’s Complaint - Alert - 12/02/2015

If left unchallenged, the ALJ’s decision in the LabMD action could significantly change the standard of reasonable security used by the FTC to determine whether a practice is unfair under Section 5 of the FTC Act, and may make it harder for the FTC to bring similar actions in the future without additional facts. However, the FTC has indicated that it may appeal this decision. Regardless, businesses should take every reasonable step to try to ensure that their data security practices are, in fact, in compliance with all appropriate standards and legal requirements.

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Digital Media, Technology & Privacy Alert >> New DAA Guidance Emphasizes Applicability of Transparency and Control to Cross-Device Advertising Practices - Alert - 11/30/2015

The DAA’s new guidance is the first self-regulatory foray into the cross-device tracking practices. Issued on the same day as a Federal Trade Commission workshop on “Cross-Device Tracking,” the industry is again hoping that staying ahead of the curve and establishing best practices to address the privacy concerns of regulators and consumers will keep lawmakers at bay.

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AdExchanger.com: Big Data Discrimination: Is The Industry Responsible? - Published Article - 10/15/2015

by Gary A. Kibel

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Digital Media, Technology & Privacy Alert >> The Rise of Ad Blocking - Alert - 10/14/2015

As ad blocking technologies continue to evolve at ever-increasing speed, purely legal solutions will have trouble keeping pace. While legal solutions will surely play a role, in the short-term, agencies, marketers and publishers should consider implementing practical solutions to ensure ad content is not blocked.

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Digital Media, Technology & Privacy Alert >> EU Court of Justice Strikes Down U.S.-EU Safe Harbor for Data Sharing  - Alert - 10/07/2015

Companies that transfer personal data from the EU to the U.S. must now consult with counsel to consider the effect of the Court of Justice’s decision on their business practices and whether they should rely on alternatives to the Safe Harbor, including model contract clauses, binding corporate rules and direct consent to permit them to continue transferring personal data to the United States.

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Digital Media, Technology & Privacy Alert >> Federal Circuit Court Reinforces FTC's Authority to Act in Data Breach Cases - Alert - 08/27/2015

For the past decade, the FTC has been bringing administrative actions under the Act against companies with allegedly deficient data security practices that failed to protect consumer data against hackers; the vast majority of these matters have ended in settlement. Now, with the Third Circuit's decision affirming the FTC's authority to hold companies accountable for failing to safeguard consumer data, one can expect an emboldened FTC to take even more action. All companies, especially those that store or maintain any sensitive financial or personal information, should use this ruling as a reason to re-assess their current cybersecurity practices to ensure that they are consistent with and accurately disclosed under all public representations about these practices, and that they have taken adequate steps to protect consumer data from unauthorized access.

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Digital Media, Technology & Privacy Alert >> DAA Announces Mobile Privacy Enforcement to Begin September 1, 2015 - Alert - 05/18/2015

Enforcement of the mobile privacy guidelines is about to begin across all of the sectors of the mobile IBA ecosystem, including app providers, ad networks, brands, agencies, and publishers. Enforcement will be active by both the BBB and DMA, and therefore all companies involved in IBA within the mobile ecosystem should take the time now to review their digital practices to determine whether they need to comply with the DAA’s Self-Regulatory Principles.

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Advertising, Marketing & Promotions Alert >> Court Finds Affiliate Marketing Network Responsible for False Claims Made by Its Affiliates - Alert - 04/20/2015

The court’s decision makes it clear that affiliate networks can be held responsible for the acts of their affiliates even if they do not create the content used by the affiliates. Accordingly, affiliate networks should consider consulting with counsel to implement best practices to try to limit their potential liability for affiliates’ actions under the FTC Act.

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Digital Media, Technology & Privacy Alert >> In “Internet of Things” Report, FTC Staff Warns Makers of Connected Devices to Improve Privacy and Security - Alert - 01/28/2015

As the report makes clear, the FTC is focusing on privacy and security issues stemming from the growth of the IoT. Since FTC staff reports are often a prelude to enforcement action by the Commission, now is the time for IoT providers to review their privacy disclosures and security practices.

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Digital Media, Technology & Privacy Alert >> Mobile Shopping Apps Do Not Provide Sufficient Disclosures to Consumers, FTC Staff Report Finds - Alert - 10/27/2014

The FTC staff report on “mobile shopping” apps – coming on the heels of FTC workshops, other reports, and enforcement actions on the topic of mobile privacy – highlights the FTC’s continuing commitment to translating its general position on company privacy and disclosure practices to emerging and new mobile platforms. We can expect to hear more from the FTC on mobile commerce, but in the meantime, all companies developing mobile shopping apps should build in the recommendations contained in this staff report.

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Digital Media, Technology & Privacy Alert >> California Amends Data Breach Notification Rules, Which “May” Include Free Credit Monitoring  - Alert - 10/24/2014

With the passing of California’s new data breach bill, companies that are the source of a breach involving personal information, and that have a duty to notify customers of the breach under California law, should carefully evaluate any offer to provide identity theft and mitigation services (which may include credit monitoring).  Further, any company that merely possesses personal information of California residents should be aware of its obligations under the law. 

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AdExchanger.com: The Risk Of Clicking Facebook’s Social Plug-in - Published Article - 07/30/2014

by Gary A. Kibel

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Digital Media, Technology & Privacy >> New Florida Privacy Breach Law Takes Effect, With Stringent Notification Rules and Other New Provisions - Alert - 07/07/2014

There are 47 states with security breach notification laws, many of which have different standards.  Any company that may possess personal information of Florida residents would be advised to (1) have a written information security policy in place; and (2) have an incident response plan and team ready to go in the event of a breach.

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Digital Media, Technology & Privacy Alert >> Snapchat Settles FTC Charges Alleging False Promises of Disappearing Messages and Failure to Protect Consumer Data - Alert - 06/11/2014

The settlement with Snapchat is part of the FTC’s continuing effort to ensure that companies market their apps truthfully and honor their privacy promises to consumers.  Companies should note that a statement in a privacy policy is like any other claim – it must be accurate, not deceptive and supportable.  In announcing the proposed settlement, FTC Chairwoman Edith Ramirez stated that, “If a company markets privacy and security as key selling points in pitching its service to consumers, it is critical that it keep those promises.” The FTC’s message is a longstanding one, and one that is unlikely to disappear anytime in the near future.        

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Digital Media, Technology & Privacy Alert >> In Long-Awaited Report on Data Brokers, FTC Expresses Concerns Over Transparency and Consumer Control - Alert - 06/05/2014

The extent to which the FTC seeks to independently focus its attention on data brokers remains to be seen. However, it is important to emphasize that, given the report’s broad characterization of data brokers as “companies that collect consumers’ personal information and resell or share that information with others,” businesses in addition to those traditionally viewed as “data brokers” should take careful note of this report. 

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Digital Media, Technology & Privacy Alert >> California Attorney General Addresses “Do Not Track” and Other Website Privacy Issues - Alert - 06/04/2014

California and the California Attorney General are influential in Do Not Track (DNT) and online privacy issues.  While the new guidance is not new law, its recommendations should be carefully considered by online services. Regulators are increasing their energies on focusing on privacy and data security issues, so following their recommendations should only have a positive effect.



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