Privacy & Information Security Law Blog

On April 17, 2024, the European Data Protection Board adopted its non-binding Opinion 08/2024 on Valid Consent in the Context of Consent or Pay Models Implemented by Large Online Platforms, stating that such models generally are not compliant with the GDPR, though their use should be considered on a case-by-case basis.

On March 1, 2024, the Virginia legislature passed S.B. 361 (the “Bill”), which amends the Virginia Consumer Data Protection Act to introduce new protections for children’s privacy. If signed by the Virginia Governor, the new children’s privacy protections will go into effect on January 1, 2025.

On March 7, 2024, the Court of Justice of the European Union (“CJEU”) issued its judgment in the case of IAB Europe (Case C‑604/22). In this judgment, the CJEU assessed the role of the Interactive Advertising Bureau Europe (“IAB Europe”) in the processing operations associated with its Transparency and Consent Framework (“TCF”) and further developed CJEU case law on the concept of personal data under the EU General Data Protection Regulation (“GDPR”).

On February 22, 2024, the Federal Trade Commission announced a settlement order against Avast Limited (“Avast”) requiring Avast to pay $16.5 million and prohibiting Avast from selling or licensing any web browsing data for advertising purposes. This ban is to settle charges that the company and its subsidiaries sold such information to third parties after promising that its products would protect consumers from online tracking.

On February 12, 2024, California bill AB-1949 was referred to the Assembly Committee on Privacy and Consumer Protection. The bill would amend the California Consumer Privacy Act (as amended by the California Privacy Rights Act) (the “CCPA”) to significantly expand businesses’ obligations with respect to the personal information of consumers under the age of 18.

On February 21, 2024, the California Attorney General announced that it had reached a settlement resolving an enforcement action under the California Consumer Privacy Act (“CCPA”) and the California Online Privacy Protection Act (“CalOPPA”) brought against online food delivery company  DoorDash, Inc. (the “Company”). This is the AG’s second CCPA enforcement settlement, following the agency’s settlement with Sephora.

In November 2023, the UK Information Commissioner’s Office (“ICO”) wrote to organizations operating 53 of the UK’s biggest websites regarding their compliance with data protection laws when using cookies.  On January 31, 2024, the ICO released a statement on such action noting that it received “an overwhelmingly positive response” with 38 of those organizations having changed their cookie banners in order to come into compliance. Others have either committed to ensuring compliance within a month, or are exploring other solutions such as contextual advertising.

On November 27, 2023, the California Privacy Protection Agency (“CPPA”) published its draft regulations on automated decisionmaking technology (“ADMT”). The regulations propose a broad definition for ADMT that includes “any system, software, or process—including one derived from machine-learning, statistics, or other data-processing or artificial intelligence—that processes personal information and uses computation as whole or part of a system to make or execute a decision or facilitate human decisionmaking.” ADMT also would include profiling, which would mean the “automated processing of personal information to evaluate certain personal aspects relating to a natural person and in particular to analyze or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behavior, location, or movements.”

On November 21, 2023, the UK Information Commissioner’s Office (“ICO”) issued a statement explaining that it has recently written to companies operating some of the UK’s most visited websites regarding their compliance with data protection laws when using cookies. The ICO noted that certain websites are not providing users with fair choices as to whether or not they are tracked for personalized marketing purposes, and referred to its guidance on making it simple for users to “Reject All” advertising cookies. 

On October 27, 2023, the European Data Protection Board (“EDPB”) adopted an urgent binding decision instructing the Irish Data Protection Commissioner (the “Irish DPC”) to take final measures against Meta Ireland Limited (“Meta”) within two weeks and impose a ban on Meta’s processing of personal data for behavioral advertising based on the contractual necessity and legitimate interests legal bases. The ban would apply across the European Economic Area (“EEA”).

On October 19, 2023, the Consumer Financial Protection Bureau (“CFPB”) proposed a new rule that would provide consumers with more control over their financial information and impose certain requirements on the following types of entities:

On September 14, 2023, the Federal Trade Commission issued a press release announcing the publication of a staff paper about blurred advertising. In the staff paper, the FTC describes blurred advertising as the blending of ads with digital media content (e.g., displaying ads within online games and virtual reality worlds). The FTC warns that these ads are not readily identifiable as marketing by consumers and pose a significant threat to young children who do not have the skills or cognitive defenses to identify and understand this type of advertising. The FTC recommends that ...

On September 14, 2023, California Attorney General Rob Bonta announced a $93 million settlement with Google, LLC (“Google”) resolving alleged violations of California’s false advertising law and unfair competition law.

On July 14, 2023, the Norwegian Data Protection Authority (“DPA”) ordered Meta Platforms Ireland Limited and Facebook Norway AS (jointly, “Meta”) to temporarily cease the processing of personal data of data subjects in Norway for the purpose of targeting ads on the basis of “observed behavior,” when relying on either the contractual necessity legal basis (Article 6(1)b)) or the legitimate interests legal basis (Article 6(1)(f)) of the GDPR.

On January 4, 2023, the Irish Data Protection Commission (“DPC”) announced the conclusion of two inquiries into the data processing practices of Meta Platforms, Inc. (“Meta”) with respect to the company’s Instagram and Facebook platforms. As a result of the investigations, the DPC fined Meta a combined €390 million for breaches of the EU General Data Protection Regulation (“GDPR”) and, following consultation with the European Data Protection Board (“EDPB”), notably held that Meta can no longer rely on the GDPR’s “performance of a contract” legal basis for processing personal data in the behavioral advertising context, a decision that has broad implications for publishers engaged in behavioral advertising in the EU.

On September 23, 2022, New York State Senator Andrew Gounardes introduced S9563, also known as the “New York Child Data Privacy and Protection Act.” The bill, which resembles the recently passed California Age-Appropriate Design Code Act, bans certain data collection and targeted advertising and requires data controllers to, among other obligations, assess the impact of their products on children.

On October 13, 2022, the Interactive Advertising Bureau (“IAB”) released for public comment an updated version of its contractual framework and new U.S. State Signals (“Signals”) specifications to help the digital advertising industry comply with the comprehensive state privacy laws of California, Virginia, Colorado, Utah and Connecticut.

On September 21, 2022, the Federal Communications Commission (“FCC”) announced a proposed combined fine of $3.4 million against Sinclair Broadcast Group, Nexstar Media Group and 19 other broadcast television licensees for violations of rules limiting commercial matter in children's television programming.

On September 21, 2022, the Federal Trade Commission announced the agenda for its “Protecting Kids from Stealth Advertising in Digital Media” virtual event to be held on October 19, 2022. The event will cover how children recognize and understand digital advertising content; the current advertising landscape’s impact on kids, including potential harms stemming from an inability to distinguish advertising from other content; and an assessment of the current legal regime’s protection of children from potential harms, and whether additional regulatory, self-regulatory, educational and technological tools may provide additional protection.

On September 7, 2022, the Children’s Advertising Review Unit (“CARU”) of BBB National Programs announced its finding that Tilting Point Media, LLC (“Tilting Point”), owner and operator of the SpongeBob: Krusty Cook-Off app (the “App”), violated the Children’s Online Privacy Protection Act (“COPPA”) and CARU’s Self-Regulatory Guidelines for Advertising and for Children’s Online Privacy Protection (“CARU’s Guidelines”). CARU has recommended a variety of corrective actions with respect to Tilting Point’s advertising and privacy practices.

On August 10, 2022, the Consumer Financial Protection Bureau (“CFPB”) issued a new interpretive rule clarifying when digital marketing providers must comply with federal consumer financial protection law. Under the new rule, Big Tech companies that use behavioral advertising techniques to market financial products will be subject to the Consumer Financial Protection Act of 2010 (“CFPA”).

On July 6, 2022, the Better Business Bureau National Programs’ Children’s Advertising Review Unit (“CARU”) announced that it had found Outright Games in violation of the Children’s Online Privacy Protection Act (“COPPA”) and CARU’s Self-Regulatory Guidelines for Advertising and Guidelines for Children’s Online Privacy Protection. Outright Games owns and operates the Bratz Total Fashion Makeover app, which CARU determined to be a “mixed audience” child-directed app subject to COPPA and CARU’s Guidelines due to the app’s subject matter, bright colors, visual content, lively audio and gameplay features.

On June 3, 2022, the Federal Trade Commission announced it is seeking public comment on its 2013 guidance, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising” (the “Guidance”). The FTC indicated that it is updating the Guidance to better protect consumers against online deceptive practices, particularly because some companies have interpreted the current version of Guidance to “justify practices that mislead consumers online.” For example, the FTC explains that companies have wrongfully claimed they can avoid FTC Act liability by placing required disclosures behind hyperlinks. The updated Guidance will address issues such as advertising on social media, in video games, in virtual reality environments, and on mobile devices and applications, as well as the use of dark patterns, manipulative user interface designs, multi-party selling arrangements, hyperlinks and online disclosures.

On April 23, 2022, the European Commission announced that the European Parliament and EU Member States had reached consensus on the Digital Services Act (“DSA”), which establishes accountability standards for online platforms regarding illegal and harmful content.

On March 24, 2022, the European Union unveiled the final text of the Digital Markets Act (the “DMA”). The final text of the DMA was reached following trilogue negotiations between the European Commission, European Parliament and EU Member States (led by the French Presidency at the European Council). The final text retains essentially the same features as the previous draft text but does include some notable changes.

On March 1, 2022, President Biden, in his first State of the Union address, called on Congress to strengthen privacy protections for children, including by banning online platforms from excessive data collection and targeted advertising for children and young people. President Biden called for these heightened protections as part of his unity agenda to address the nation’s mental health crisis, especially the growing concern about the harms of digital technologies, particularly social media, to the mental health and well-being of children and young people. President Biden not only urged for stronger protections for children’s data and privacy, but also for interactive digital service providers to prioritize safety-by-design standards and practices. In his address, President Biden called on online platforms to “prioritize and ensure the health, safety and well-being of children and young people above profit and revenue in the design of their products and services.” President Biden also called for a stop to “discriminatory algorithmic decision-making that limits opportunities” and impacts the mental well-being of children and young people.

On February 2, 2022, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a €250,000 fine against the Interactive Advertising Bureau Europe (“IAB Europe”) for several alleged infringements of the EU General Data Protection Regulation (the “GDPR”), following an investigation into IAB Europe Transparency and Consent Framework (“TCF”).

The Austrian data protection authority (the “Austrian DPA”) recently published a decision in a case brought against an Austrian website provider and Google by the non-governmental organization co-founded by privacy activist Max Schrems, None of Your Business (“NOYB”). The Austrian DPA ruled that the use of Google Analytics cookies by the website operator violates both Chapter V of the EU General Data Protection Regulation (“GDPR”), which establishes rules on international data transfers, and the Schrems II judgment of the Court of Justice of the European Union.

On December 27, 2021, the Federal Trade Commission sought public comment on a petition filed by Accountable Tech calling on the FTC to use its rulemaking authority to prohibit “surveillance advertising” as an “unfair method of competition” (“UMC”). Accountable Tech is a non-profit organization that advocates for social media companies to strengthen the integrity of their platforms.

On December 15, 2021, the European Parliament adopted its position on the proposal for a Digital Markets Act (“DMA”), ahead of negotiations with the Council of the European Union.

The DMA introduces new rules for certain core platforms services acting as “gatekeepers,” (including search engines, social networks, online advertising services, cloud computing, video-sharing services, messaging services, operating systems and online intermediation services) in the digital sector and aims to prevent them from imposing unfair conditions on businesses and consumers and to ensure the openness of important digital services.

On November 18, 2021, the European Data Protection Board (“EDPB”) released a statement on the Digital Services Package and Data Strategy (the “Statement”). The Digital Services Package and Data Strategy is a package composed of several legislative proposals, including the Digital Services Act (“DSA”), the Digital Markets Act (“DMA”), the Data Governance Act (“DGA”), the Regulation on a European approach for Artificial Intelligence (“AIR”) and the upcoming Data Act (expected to be presented shortly). The proposals aim to facilitate the further use and sharing of personal data between more public and private parties; support the use of specific technologies, such as Big Data and artificial intelligence (“AI”); and regulate online platforms and gatekeepers.

On November 5, 2021, IAB Europe (“IAB EU”) announced that, in the coming weeks, the Belgian Data Protection Authority plans to share with other data protection authorities a draft ruling on the IAB EU Transparency & Consent Framework (“TCF”). The TCF is a GDPR consent solution built by IAB EU that has become a widely used approach to collecting consent to cookies under the GDPR. The draft ruling is expected to find that the TCF does not comply with the GDPR, in part because IAB EU acts as a controller, and the digital signals the TCF creates to capture individuals’ consent to cookies are personal data under the GDPR. Because IAB EU does not consider itself a controller with respect to the TCF, it does not currently comply with the GDPR’s controller obligations.

The Irish Data Protection Commissioner (“DPC”) has submitted a draft decision on Facebook Ireland Limited’s (“Facebook”) data protection compliance to other European regulators under the cooperation mechanism of the EU General Data Protection Regulation (“GDPR”) (the “Draft Decision”). The DPC proposes a fine between €28 and €36 million (i.e., up to $42 million) for infringements of the transparency obligations under the GDPR, specifically with respect to the legal basis upon which Facebook relied. In addition, the Draft Decision proposes imposing an order on Facebook to bring its terms of service and Data Policy into compliance within three months. However, the DPC indicates in its Draft Decision that Facebook is permitted to rely on contractual necessity as a legal basis for its personalized advertising, taking the view that this constitutes a core element of Facebook’s service.

On August 25, 2021, New Mexico Attorney General (“AG”) Hector Balderas sued Rovio Entertainment (“Rovio” or the “Company”), the developer of the popular Angry Birds mobile app games, alleging that the Company violated the federal Children’s Online Privacy Protection Act (“COPPA”) by knowingly collecting data from players under age 13 and sharing it with advertisers. Under COPPA, developers of child-directed apps are required to provide notice to parents of their data collection practices and obtain verifiable parental consent to collect personal information from children under 13.

The Children’s Advertising Review Unit (“CARU”), a part of a part of the Better Business Bureau National Programs (“BBBNP”), released its revised Children’s Advertising Guidelines (the “Guidelines”) earlier this month. The Guidelines, which contain some notable changes, will go into effect in January 2022.

Laura Liguori of Portolano Cavallo reports that on June 10, 2021, the Italian Data Protection Authority (Garante or “DPA”) adopted a new version of its guidelines for cookies and other tracking mechanisms (the “Guidelines”).

On July 29, 2021, U.S. Representative Rep. Kathy Castor (D-Florida), a member of the House Energy and Commerce Committee, reintroduced the Protecting the Information of our Vulnerable Children and Youth Act (the “Bill”). The Bill would update the Children’s Online Privacy Protection Act (“COPPA”) to, among other requirements: (1) cover teens ages 13-17; (2) expand the categories of information considered to be “personal” (to include physical characteristics, biometric information, health information, education information, contents of messages and calls, browsing and search history, geolocation information, and latent audio or visual recordings); (3) prohibit companies from targeting online advertising to children and teens based on their personal information and behavior; (4) require opt-in consent to process personal information collected from all individuals under age 18; (5) strengthen Federal Trade Commission enforcement of COPPA; (6) provide a private right of action to parents of children and teens; and (7) eliminate the FTC’s recognition of self-regulatory COPPA safe harbor programs.

On June 24, 2021, Google announced that it will delay its plan to replace the use of third-party cookies on its Chrome web browser with new technologies. This delay comes amid antitrust and privacy concerns, as well as scrutiny from the advertising industry that the changes will strengthen Google’s own advertising business.

On June 3, 2021, Google informed app developers that beginning in late 2021, when Android 12 OS users opt out of personalized ads, the advertising ID provided by Google Play services (the Google Ad ID, or “GAID”) will not be made available to app developers for any purpose.

On May 11, 2021, Senators Edward Markey (D-MA) and Bill Cassidy (R-LA) introduced the Children and Teens’ Online Privacy Protection Act (the “Bill”). The Bill, which would amend the existing Children’s Online Privacy Protection Act (“COPPA”), would prohibit companies from collecting personal information from children ages 13 to 15 without their consent.

On May 2, 2021, the Norwegian data protection authority, Datatilsynet, notified Disqus Inc. (“Disqus”), a U.S. company owned by Zeta Global, of its intention to issue a fine of 25 million Norwegian Krone (approximately 2.5 million Euros). The preliminary fine was issued for failure to comply with the General Data Protection Regulation’s (“GDPR”) accountability, lawfulness and transparency requirements, primarily due to Disqus’ tracking of website visitors.

On April 20, 2021, Apple announced that its AppTracking Transparency Framework (“ATT Framework”) will go into effect starting April 26, 2021, along with the upcoming public release of iOS 14.5, iPadOS 14.5 and tvOS 14.5.

On February 24, 2021, the Federal Trade Commission announced that it will hold a workshop on digital dark patterns on April 29, 2021. The workshop will aim to understand the ways in which user interfaces can have the effect, intentionally or unintentionally, of obscuring, subverting or impairing consumer autonomy, decision-making or choice.

On February 10, 2021, the European Data Protection Supervisor (“EDPS”) published two opinions on the European Commission’s proposals for a Digital Services Act (“DSA”) and a Digital Markets Act (“DMA”). The proposed DSA and DMA are part of a set of measures announced in the 2020 European Strategy for Data and have two main goals: (1) creating a safer digital space in which the fundamental rights of all users of digital services are protected, and (2) establishing a level playing field to foster innovation, growth and competitiveness in the European Single Market and globally.

The recent UK case of Soriano v Forensic News and Others tested the territorial reach of the General Data Protection Regulation (“GDPR”) and represents the first UK judgment dealing with the territorial scope of the GDPR. This was a “service out” case, where the claimant, Walter T. Soriano, sought the Court’s permission under the UK Civil Procedure Rules to serve proceedings on the defendants, who were all domiciled in the U.S.

On January 13, 2021, Advocate General (“AG”) Michal Bobek of the Court of Justice of the European Union (“CJEU”) issued his Opinion in the Case C-645/19 of Facebook Ireland Limited, Facebook Inc., Facebook Belgium BVBA v. the Belgian Data Protection Authority (“Belgian DPA”).

As reported on the Hunton Retail Law Resource blog, the Federal Trade Commission settled charges with mobile advertising company Tapjoy, Inc., on allegations that the company failed to provide promised rewards in exchange for completed activities such as the payment of money, disclosure of sometimes-sensitive personal information or registration for “free trial” marketing offers.

On September 7, 2020, the European Data Protection Board (the “EDPB”) published Guidelines on the Targeting of Social Media Users (the “Guidelines”). The Guidelines aim to provide practical guidance on the role and responsibilities of social media providers and those using targeting services, such as for targeted advertising, on social media platforms (“targeters”).

On January 8, 2020, the Information Commissioner's Office (“ICO”) launched a consultation on its draft direct marketing code of practice (the “Draft Code”), as required by section 122 of the Data Protection Act 2018 (“DPA 18”). The Draft Code is open for public consultation until March 4, 2020.

On June 28, 2019, the French data protection authority (the “CNIL”) published its action plan for 2019-2020 to specify the rules applicable to online targeted advertising and to support businesses in their compliance efforts.

The UK Information Commissioner’s Office (“ICO”) recently published an updated report on adtech, following a Fact Finding Forum held in March 2019 and consultation with industry players. The report focuses on whether and how organizations in the adtech sector can comply with the EU General Data Protection Regulation (“GDPR”) and the UK’s implementation of the e-Privacy Directive, known as the Privacy and Electronic Communications Regulations (“PECR”).

On April 12, 2019, the European Data Protection Board (“EDPB”) published draft guidelines 2/2019 on the processing of personal data in the context of the provision of online services to data subjects (the “Guidelines”).

On November 30, 2018, the Austrian Data Protection Authority (“DPA”) published a decision in response to a complaint received from an individual regarding the cookie consent options offered on an Austrian newspaper’s website. As a factual matter, the Austrian newspaper offered three options to individuals who sought to access content on the site: (1) accept the use of cookies for analytics and advertising purposes and have full, complimentary website access; (2) refuse cookies and obtain access to only limited content on the website; or (3) pay a monthly subscription of €6 to obtain full access to the website without accepting the use of cookies and similar tracking technologies.

On October 17, 2018, the French data protection authority (the “CNIL”) published a press release detailing the rules applicable to devices that compile aggregated and anonymous statistics from personal data—for example, mobile phone identifiers (i.e., media access control or “MAC” address) —for purposes such as measuring advertising audience in a given space and analyzing flow in shopping malls and other public areas. Read the press release (in French).

Vizio, Inc. (“Vizio”), a California-based company best known for its internet-connected televisions, agreed to a $17 million settlement that, if approved, will resolve multiple proposed consumer class actions consolidated in California federal court. The suits’ claims, which are limited to the period between February 1, 2014 and February 6, 2017, involve data-tracking software Vizio installed on its smart TVs. The software allegedly identified content displayed on Vizio TVs and enabled Vizio to determine the date, time, channel of programs and whether a viewer watched live or recorded content. The viewing patterns were connected to viewer’s IP addresses, though never, Vizio emphasized in its press release announcing the proposed settlement, to an individual’s name, address, or similar identifying information. According to Vizio, viewing data allows advertisers and programmers to develop content better aligned with consumers’ preferences and interests.  

On July 12, 2018, two U.S. Senators sent a letter to the Federal Trade Commission asking the agency to investigate the privacy policies and practices of smart TV manufacturers. In their letter, Senators Edward Markey (D-MA) and Richard Blumenthal (D-CT) note that smart TVs can “compile detailed profiles about users’ preferences and characteristics” which can then allow companies to personalize ads to be sent to “customers’ computers, phones or any other device that shares the smart TV’s internet connection.”

On June 22, 2016, the Federal Trade Commission announced a settlement with Singaporean-based mobile advertising network, InMobi, resolving charges that the company deceptively tracked hundreds of millions of consumers’ locations, including children, without their knowledge or consent. Among other requirements, the settlement orders the company to pay $950,000 in civil penalties. 

On December 30, 2015, the Pew Research Center released a report on the results of a recent survey that asked 461 Americans about their feelings toward sharing personal information with companies. The survey found that a “significant minority” of American adults have felt “confused over information provided in company privacy policies, discouraged by the amount of effort needed to understand the implications of sharing their data, and impatient because they wanted to learn more about the information-sharing process but felt they needed to make a decision right away.”

On June 30, 2015, the French Data Protection Authority (the “CNIL”) summarized the results of the cookie inspections it conducted at the end of 2014.

On May 25, 2015, the French Data Protection Authority (“CNIL”) released its long-awaited annual inspection program for 2015. Under French data protection law, the CNIL may conduct four types of inspections: (1) on-site inspections (i.e., the CNIL may visit a company’s facilities and access anything that stores personal data); (2) document reviews (i.e., the CNIL may require an entity to send documents or files upon written request); (3) hearings (i.e., the CNIL may summon representatives of organizations to appear for questioning and provide other necessary information); and (4) since March 2014, online inspections.

On May 13, 2015, the Belgian Data Protection Authority (the “DPA”) published a recommendation addressing the use of social plug-ins associated with Facebook and its services (the “Recommendation”). The Recommendation stems from the recent discussions between the DPA and Facebook regarding Facebook’s privacy policy and the tracking of individuals’ Internet activities.

On May 7, 2015, the Digital Advertising Alliance (“DAA”) announced that, as of September 1, 2015, the Council of Better Business Bureaus and the Direct Marketing Association will begin to enforce the DAA Self-Regulatory Principles for Online Behavioral Advertising and the Multi-Site Data Principles (collectively, the “Self-Regulatory Principles”) in the mobile environment.

Hunton & Williams’ EU Privacy and Cybersecurity practice lawyers recently authored The Proposed EU General Data Protection Regulation – A guide for in-house lawyers (the “Guide”), addressing the key impacts of the forthcoming changes to EU data protection law. Current EU data protection law is based on the EU Data Protection Directive 95/46/EC (the “Directive”), which was introduced in 1995. An updated and more harmonized data protection law, in the form of a Regulation, has been proposed by the EU’s legislative bodies to replace the Directive. The Guide is intended to assist in-house lawyers in understanding the likely impact of the Regulation on businesses. While still under negotiation, the Regulation will significantly change the landscape of EU privacy and data protection in several key areas, including:

On November 16, 2015, the Federal Trade Commission will host a workshop in Washington, D.C., to examine the benefits and privacy risks associated with “cross-device tracking.” The workshop intends to highlight the types of cross-device tracking techniques and how businesses and consumers can benefit from these practices. The workshop also will address related privacy and security risks, and discuss whether self-regulatory programs apply to these practices.

On January 14, 2015, the data protection authority of the German federal state of Schleswig-Holstein (“Schleswig DPA”) issued an appeal challenging a September 4, 2014 decision by the Administrative Court of Appeals, which held that companies using Facebook’s fan pages cannot be held responsible for data protection law violations committed by Facebook because the companies do not have any control over the use of the data.

On November 25, 2014, the Article 29 Working Party (the “Working Party”) adopted Opinion 9/2014 (the “Opinion”) on device fingerprinting. The Opinion addresses the applicability of the consent requirement in Article 5.3 of the e-Privacy Directive 2002/58/EC (as amended by Directive 2009/136/EC) to device fingerprinting. As more and more website providers suggest using device fingerprinting instead of cookies for the purpose of providing analytics or for tracking purposes, the Working Party clarifies how the rules regarding user consent to cookies apply to device fingerprinting. Thus, the Opinion expands on Opinion 04/2012 on the Cookie Consent Exemption.

On May 27, 2014, the Federal Trade Commission announced the release of a new report entitled Data Brokers: A Call for Transparency and Accountability, detailing the findings of an FTC study of nine data brokers, representing a cross-section of the industry. The Report concludes that the data broker industry needs greater transparency and recommends that Congress consider enacting legislation that would make data brokers’ practices more visible and give consumers more control over the collection and sharing of their personal information.

On March 5, 2014, the French Data Protection Authority (the “CNIL”) issued new guidelines in the form of five practical information sheets that address online purchases, direct marketing, contests and sweepstakes, and consumer tracking (the “Guidelines”).

On January 16, 2014 the High Court in London rejected submissions made on behalf of Google Inc. (“Google”) that the case brought against it by three UK-based users of Apple’s Safari browser should be heard in the U.S., rather than before an English court. The decision means that the case could be heard before a court in England, although media reports suggest Google will appeal the decision.

On November 15, 2013, the U.S. Government Accountability Office (“GAO”) released a report (the “Report”) finding that the current federal statutory privacy scheme contains “gaps” and “does not fully reflect” the Fair Information Practice Principles (“FIPPs”). The Report focused primarily on companies that gather and resell consumer personal information, and on the use of consumer personal information for marketing purposes.

On October 4, 2013, The Centre for Information Policy Leadership’s Senior Policy Advisor Fred Cate reported on the 35th International Conference of Data Protection and Privacy Commissioners which concluded on September 24 in Warsaw, Poland. The report indicates that four main issues dominated the Conference: (1) challenges presented by technologies such as mobile apps and online profiling, (2) multinational interoperability and enforcement, (3) pending EU data protection regulation and alternatives, and (4) repercussions of NSA surveillance activities.

Read the ...

On September 27, 2013, California Governor Jerry Brown signed into law a bill amending the California Online Privacy Protection Act (“CalOPPA”) to require website privacy notices to disclose how the site responds to “Do Not Track” signals, and whether third parties may collect personal information when a consumer uses the site. Although the changes to the law do not prohibit online behavioral advertising, this is the first law in the United States to impose disclosure requirements on website operators that track consumers’ online behavior.

On September 25, 2013, Senator Jay Rockefeller (D-WV), Chair of the Senate Committee on Commerce, Science and Transportation, expanded his investigation of the data broker industry by asking twelve popular health and personal finance websites to answer questions about their data collection and sharing practices.

On September 23 and 24, 2013, a declaration and eight resolutions were adopted by the closed session of the 35th International Conference of Data Protection and Privacy Commissioners and have been published on the conference website. This blog post provides an overview of the declaration and the most significant resolutions.

On September 23, 2013, California Governor Jerry Brown signed a bill that adds “Privacy Rights for California Minors in the Digital World” to the California Online Privacy Protection Act (“CalOPPA”). The new CalOPPA provisions prohibit online marketing or advertising certain products to anyone under age 18, and require website operators to honor requests made by minors who are registered users to remove content the minor posted on the site. In addition, operators must provide notice and instructions to minors explaining their rights regarding the removal of content they’ve posted.

On July 12, 2013, Illinois Attorney General Lisa Madigan announced that she sent letters to operators of eight popular health-related websites requesting information about the websites’ online data collection practices. The Attorney General’s press release underscored how individuals’ health-related information shared online, which would be protected if disclosed in a traditional medical setting, “can be captured, shared and sold when online users enter their information into a website.” The Attorney General also stated that “website disclosure about the extent to which information is captured or shared is buried in privacy policies not found on the websites’ main pages.”

Senior Attorney Rosemary Jay reports from London:

On June 25, 2013, Advocate-General Jääskinen of the European Court of Justice (“ECJ”) delivered his Opinion in Google Spain S.L. and Google Inc. v Agencia Española de Protección de Datos (Case C-131/12, “Google v AEPD” or the “case”).

The case concerns Google Search results, and whether individuals have a right to erasure of search result links about them. The Opinion concludes that under current law, individuals have no such right. The European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”) would introduce a right to be forgotten. However, this Opinion appears to demonstrate unease with the basic concept of such a right.

On April 30, 2013, the regional court of Berlin enjoined Apple Sales International, which is based in Ireland, (“Apple”) from relying on eight of its existing standard data protection clauses in contracts with customers based in Germany. The court also prohibited Apple’s future use of such clauses.

On April 2, 2013, the Article 29 Working Party (the “Working Party”) adopted an Opinion (the “Opinion”) that elaborates on the purpose limitation principle set out in Article 6(1)(b) of the current EU Data Protection Directive 95/46/EC (the “Data Protection Directive”). The Opinion analyzes the scope of this principle under the Data Protection Directive, clarifies its limits and makes recommendations to strengthen it in the proposed General Data Protection Regulation (the “Proposed Regulation”). It also focuses on how to apply this principle in the context of Big Data and open data.

In an interview with Tom Field of BankInfoSecurity, Lisa J. Sotto, partner and head of the Global Privacy and Data Security practice at Hunton & Williams LLP, discussed the top privacy trends and threats for 2013. Lisa predicts that security vulnerabilities will remain the biggest threat to privacy, particularly with the move toward mobile computing. She also talked about key issues to watch in 2013, such as online behavioral advertising, big data and evolving privacy legislation and regulation, especially in the EU and other countries around the globe.

Listen to Lisa’s ...

Internet users have expressed increasing concern about efforts to track their online activities. As the online tracking methods used to target advertisements have expanded in both scope and complexity, regulators have taken notice and have begun to act in the online behavioral tracking and advertising space. In an article published in the November/December 2012 issue of IP Litigator, Lisa J. Sotto, partner and head of the Global Privacy and Data Security practice at Hunton & Williams LLP, and Melinda L. McLellan, a senior associate on the firm’s Privacy and Data Security team ...

On December 18, 2012, the Federal Trade Commission issued Orders to File Special Report (the “Orders”) to nine data brokerage companies, seeking information about how these companies collect and use personal data about consumers. In the Orders, the FTC requests detailed information about the data brokers’ privacy practices, including:

• the data brokerage companies’ online and offline products and services that use personal data;
• the sources and types of personal data the data brokerage companies collect;
• whether, and how, the companies acquire consumer consent before obtaining, collecting, generating, deriving, disseminating or storing the personal data;
• whether, and how, the personal data is aggregated, anonymized or de-identified;
• how the companies monitor, audit or evaluate the accuracy of the personal data they obtain;
• if, and how, consumers are able to access, correct, delete or opt out of the collection, use or sharing of the personal data the data brokerage companies maintain about the consumers;
• how the data brokerage companies provide notice to consumers about their data privacy practices;
• the advertisements or promotional materials the companies use to describe their products and services; and
• information about any complaints or disputes, or governmental or regulatory inquiries or actions, related to the companies’ data privacy practices.

On December 18, 2012, the Information Commissioner’s Office (“ICO”) released an enforcement report (the “Report”) on the extent of compliance with recent changes to UK law governing the use of cookies (The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011). The ICO previously issued an interim report on organizations’ attempts to achieve compliance, in which it concluded that organizations “must try harder” with their cookie compliance efforts.

On December 5, 2012, the Federal Trade Commission announced that the online advertising company Epic Marketplace, Inc. (“Epic”) agreed to settle charges that it engaged in “history sniffing” to secretly and illegally collect information about consumers’ interest in sensitive medical and financial issues. History sniffing is the practice of determining whether a consumer has previously visited a webpage by checking how a browser displays a hyperlink. The consent order requires Epic to destroy all data collected from history sniffing and bars Epic from engaging in history sniffing in the future.

On November 21, 2012, the UK Committee of Advertising Practice (“CAP”) released new rules on online behavioral advertising (“OBA”). CAP is the UK body which writes and maintains the UK advertising codes, which are administered and enforced by the UK Advertising Standards Authority (“ASA”).

On November 27, 2012, the International Chamber of Commerce of the United Kingdom (“ICC UK”) released the second edition of its cookie guidance (the “Guidance”). The ICC UK released the first edition of the Guidance in April of this year, and has produced this latest version to take into account updated guidance released by the UK Information Commissioner’s Office (“ICO”), the Article 29 Working Party Opinion 04/2012 on cookie consent exemption and new UK advertising rules on online behavioral advertising.

On November 19, 2012, 40 German advertising associations launched the “German Data Protection Council for Online Advertising,” a new initiative to coordinate and enforce self-regulation in the German online behavioral advertising (“OBA”) sector. The initiative is linked to the European Interactive Digital Advertising Alliance (“EDAA”), which manages the self-regulation efforts of the European online advertising industry.

On November 15, 2012, the UK Office of Fair Trading (the “OFT”) launched a call for information to investigate whether offering “personalized pricing” based on data companies collect about consumers’ online behavior violates consumer protection legislation in the UK. The OFT will look at how companies gather data related to “consumers’ browsing history, purchases, demographic, hardware, operating system, etc and use this to personalise products and prices.” In particular, as indicated on the OFT’s website, the OFT will analyze:

On October 26, 2012, three resolutions were adopted by the closed session of the 34th International Conference of Data Protection and Privacy Commissioners and have been published on the conference website. Below we provide an overview of these resolutions.

Reporting from Washington, D.C., Hunton & Williams partner Frederick Eames writes:

Elections have consequences. What are the consequences of the 2012 election on U.S. federal privacy, data security and breach notice legislation? We outline some key developments in the U.S. House of Representatives and Senate and explain how these developments might affect legislative priorities and prospects for the 113th Congress beginning in 2013.

On October 22, 2012, the Federal Trade Commission announced a proposed settlement agreement with Compete, Inc. (“Compete”), an online market research company that collects clickstream data from consumers to generate and sell analytical reports about consumer behavior on the Internet.

On August 10, 2012, a federal district court in California denied Hulu’s motion to dismiss the remaining claim in a putative class action suit alleging that the online streaming video provider transmitted users’ personal information to third parties in violation of the Video Privacy Protection Act (“VPPA”). The VPPA prohibits a “video tape service provider” from transmitting personally identifiable information of “consumers,” except in certain, limited circumstances. According to the complaint, Hulu allegedly allowed KISSmetrics, a data analytics company, to place tracking codes on the plaintiffs’ computers that re-spawned previously-deleted cookies, and shared Hulu users’ video viewing choices and “personally identifiable information” with third parties, including online ad networks, metrics companies and social media networks.

On June 7, 2012, the Article 29 Working Party (the “Working Party”) adopted an Opinion analyzing the exemptions to the prior opt-in consent requirement for cookies. Although the Opinion focuses on cookies, the Working Party also notes that the same analysis applies to any technology allowing information to be stored or accessed on a user’s computer or mobile device.

On May 25, 2012, the UK Information Commissioner’s Office posted updated guidance on how to comply with amendments to EU data protection law requiring businesses to obtain consent from website visitors to store information on their computers and retrieve that information in the form of cookies. Last year, the ICO gave organizations a grace period expiring on May 26, 2012, to comply with the new cookie rules.

On May 8, 2012, the Federal Trade Commission announced a settlement agreement with the social networking service Myspace LLC (“Myspace”). The FTC alleged that Myspace’s practice of sharing users’ personal information with unaffiliated third-party advertisers conflicted with representations the company made in its privacy policy, and could allow those advertisers to obtain users’ names, publicly available information and information about their online browsing habits.

On March 26, 2012, the Federal Trade Commission issued a new privacy report entitled “Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers.” The report charts a path forward for companies to act in the interest of protecting consumer privacy.

In his introductory remarks, FTC Chairman Jon Leibowitz indicated his support for Do Not Track stating, “Simply put, your computer is your property; no one has the right to put anything on it that you don’t want.” In later comments he predicted that if effective Do Not Track mechanisms are not available by the end of this year, the new Congress likely would introduce a legislative solution.

The Digital Advertising Alliance (“DAA”) recently announced that its members will work “to add browser-based header signals to the set of tools by which consumers can express their preferences” not to be tracked online and will work with browser providers to develop “consistent language across browsers…that describes to consumers the effect of exercising such choice.”

This announcement came on the heels of the Obama administration’s release of a framework for a Consumer Privacy Bill of Rights. The DAA’s agreement represents the industry’s attempt to appease consumer privacy concerns in the face of the growth of online advertising. The DAA represents over 400 advertising and technology companies.