Privacy & Information Security Law Blog

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 November 25, 2022, Ireland’s Data Protection Commission (“DPC”) released a decision fining Meta Platforms, Inc. (“Meta”) €265 million for a 2019 data leak involving the personal information of approximately 533 million Facebook users worldwide.

On November 21, 2022, Meta Platforms, Inc. (“Meta”) announced updated practices designed to protect the privacy of young people on Facebook and Instagram, including default privacy settings for new accounts, measures to limit unwanted interactions with adult users, and a tool to limit the spread of teens’ intimate images online.

On November 15, 2022, the Italian Supreme Court held that an Italian court or competent data protection authority has jurisdiction to issue a global delisting order. A delisting order requires a search engine to remove certain search results about individuals if the data subject’s privacy interests prevail over the general right to expression and information, and the economic interest of the search engine. The case was brought by an Italian individual, who requested a worldwide delisting order, concerning all versions of the search engine, due to potential damage to the applicant's professional interests outside of the European Union.

On November 14, 2022, Judge Edward J. Davila of the Northern District of California approved a $90 million privacy settlement against Meta Platforms, Inc. (formerly Facebook, Inc.) for unlawfully tracking user information when users were logged out of the site. Under the order granting plaintiffs’ motion for final approval of the class action settlement and attorney fees, Facebook must pay $90 million dollars in settlements, of which $26.1 million will be for attorney fees, and delete certain “wrongfully collected” data. Despite numerous objections that the settlement ...

On October 31, 2022, the Consumer Financial Protection Bureau (“CFPB”) announced that it will re-open the public comment period on their October 2021 Orders for six large technology companies operating payments platforms to provide information about their business practices. The October 2021 Orders requested that Amazon, Apple, Facebook, Google, PayPal and Square provide information about their data collection and use, their policies for removing individuals and businesses from their platforms, and their policies and practices for providing consumer protections such as addressing disputes and errors.

On February 14, 2022, Texas Attorney General Ken Paxton brought suit against Meta, the parent company of Facebook and Instagram, over the company’s collection and use of biometric data. The suit alleges that Meta collected and used Texans’ facial geometry data in violation of the Texas Capture or Use of Biometric Identifier Act (“CUBI”) and the Texas Deceptive Trade Practices Act (“DTPA”). The lawsuit is significant because it represents the first time the Texas Attorney General’s Office has brought suit under CUBI.

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 31, 2021, the French Data Protection Authority (the “CNIL”) imposed a €150,000,000 fine on Google and a €60,000,000 fine on Facebook (now Meta) for violations of French rules on the use of cookies.

On November 2, 2021, Facebook parent Meta Platforms Inc. announced in a blog post that it will shut down its “Face Recognition” system in coming weeks as part of a company-wide move to limit the use of facial recognition in its products. The company cited the need to “weigh the positive use cases for facial recognition against growing societal concerns, especially as regulators have yet to provide clear rules.”

On October 21, 2021, the Consumer Financial Protection Bureau (“CFPB”) issued orders to Google, Apple, Facebook, Amazon, Square and PayPal requesting detailed information about their business practices in relation to payment systems they operate. The CFPB issued the orders pursuant to its statutory authority under the Consumer Financial Protection Act.

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 October 15, 2021, the U.S. District Court for the District of Massachusetts entered a final order approving a $14 million class action settlement resolving claims against HelloFresh for alleged violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq. The named plaintiffs alleged that HelloFresh violated the TCPA by (1) placing telemarketing calls to consumers whose phone numbers were listed on the federal Do Not Call registry; (2) placing telemarketing calls to consumers using an automatic telephone dialing system (“ATDS”) without prior express written consent; and (3) placing telemarketing calls to consumers who had requested to be placed on Hello Fresh’s internal Do Not Call list. According to plaintiffs’ attorneys, this settlement is the largest TCPA class action settlement in Massachusetts state history.

On June 15, 2021, the Court of Justice of the European Union (the “CJEU”) released its judgment in case C-645/19 of Facebook Ireland Limited, Facebook Inc., Facebook Belgium BVBA v. the Belgian Data Protection Authority (“Belgian DPA”). We previously reported on the background of the case and the Advocate General’s opinion.

On May 14, 2021, the Irish High Court dismissed Facebook Ireland’s (“Facebook”) challenge to the Irish Data Protection Commissioner’s (“DPC”) investigation into Facebook’s international transfers of personal data.

On April 1, 2021, the Supreme Court issued its long-awaited opinion in Facebook, Inc. v. Duguid et al., No. 19-511 (Apr. 1, 2021).  At issue in Facebook, was the question of what technology constitutes an “automatic telephone dialing system” (“ATDS”) within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. §227 et seq (“TCPA”). The Supreme Court’s unanimous decision is a huge win for companies who communicate with their consumers by telephone/text message.

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”).

On July 28, 2020, German supervisory authorities (Datenschutzkonferenz, the “DSK”) issued a statement reiterating the requirement for additional safeguards when organizations rely on Standard Contractual Clauses (“SCCs”) or Binding Corporate Rules (“BCRs”) for the transfer of personal data to third countries in the wake of the Court of Justice of the European Union’s (the “CJEU”) invalidation of the Privacy Shield Framework. In its July 16, 2020 judgment, the CJEU concluded that SCCs issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid, subject to the need to assess whether additional safeguards are required depending on the recipient jurisdiction. In this same decision, the CJEU struck down the EU-U.S. Privacy Shield Framework.

Texas Attorney General Ken Paxton is investigating Facebook Inc. (“Facebook”) for alleged violations of the Texas Business and Commercial Code, which contains provisions governing the collection, retention and disclosure of biometric data. As we previously reported, Facebook recently reached a $650 million settlement for alleged violations of Illinois’ Biometric Information Privacy Act for their use of facial recognition software without permission from affected users.

On July 16, 2020, the Court of Justice of the European Union (the “CJEU”) issued its landmark judgment in the Schrems II case (case C-311/18). In its judgment, the CJEU concluded that the Standard Contractual Clauses (the “SCCs”) issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid. Unexpectedly, the Court invalidated the EU-U.S. Privacy Shield framework.

In one of the most important cases on global data transfers, the Court of Justice of the European Union (“CJEU”) will rule on the validity of the Standard Contractual Clauses (“SCCs”) in the Schrems II case (case C-311/18) on July 16, 2020. Invalidation of the SCCs would leave businesses scrambling to find an alternative data transfer mechanism. But there may be significant practical challenges for businesses even if the SCCs survive.

In a case that has garnered widespread interest, the Court of Justice of the European Union (“CJEU”) will deliver its judgment in the Schrems II case (case C-311/18) on July 16, 2020, determining the validity of the controller–to-processor Standard Contractual Clauses (“SCCs”) as a cross-border data transfer mechanism under the EU General Data Protection Regulation (“GDPR”). If the SCCs are invalidated, the judgment would deliver a significant blow to the numerous businesses that rely on them, leaving many scrambling to find a suitable alternative transfer mechanism. Even if the SCCs survive, they may become more cumbersome to use.

On June 23, 2020, the German Federal Court of Justice (the Bundesgerichtshof, or “BGH”) issued a decision confirming the enforceability, in preliminary proceedings, of the order of the German Federal Cartel Office (the “Bundeskartellamt”) against Facebook’s data practices.

Facebook disclosed on January 29, 2020, that it has agreed to pay $550,000,000 to resolve a biometric privacy class action filed by Illinois users under the Biometric Information Privacy Act (“BIPA”). BIPA is an Illinois law enacted in 2008 that governs the collection, use, sharing, protection and retention of biometric information. In recent years, numerous class action lawsuits have been filed under BIPA seeking statutory damages ranging from $1,000 per negligent violation to $5,000 per reckless or intentional violation.

On December 19, 2019, the Advocate General of the Court of Justice of the European Union (the “CJEU”) handed down his opinion in the so-called “Schrems II” case (case C-311/18). He recommended that the CJEU uphold the validity of the Standard Contractual Clauses (“SCCs”) as a mechanism for transferring personal data outside of the EU. Given that SCCs are the key data transfer mechanism used by many organizations to transfer personal data outside of the EU, the opinion has far-reaching repercussions and will be welcomed by businesses across the globe.

On November 13, 2019, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth issued a discussion paper on “Organizational Accountability in Light of FTC Consent Orders” (the “Discussion Paper”). The Discussion Paper examines the recent $5 billion FTC settlement with Facebook, which resulted from Facebook’s alleged violation of a prior 2012 FTC consent order, and the recent $575 million FTC settlement with Equifax, related to its 2017 data breach.

On October 30, 2019, Facebook reached a settlement with the UK Information Commissioner’s Office (“ICO”) under which it agreed to pay (without admission of liability) the £500,000 fine imposed by the ICO in 2018 in relation to the processing and sharing of its users’ personal data with Cambridge Analytica.

On August 8, 2019, the United States Court of Appeals for the Ninth Circuit allowed a class action brought by Illinois residents to proceed against Facebook under the Illinois Biometric Information Privacy Act (“BIPA”) (740 ICLS 14/1, et seq.).

On July 29, 2019, the Court of Justice of the European Union (the “CJEU”) released its judgment in case C-40/17, Fashion ID GmbH & Co. KG vs. Verbraucherzentrale NRW eV. The Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf) requested a preliminary ruling from the CJEU on several provisions of the former EU Data Protection Directive of 1995, which was still applicable to the case since the court proceedings had started before the implementation of the EU General Data Protection Regulation (“GDPR”).

In addition to Facebook’s record-breaking Federal Trade Commission penalty and settlement order, on July 24, 2019, the Securities and Exchange Commission announced charges against Facebook for inadequate and misleading disclosures over its privacy practices. Facebook, without admitting or denying the SEC’s allegations, has agreed to the entry of a final judgment ordering a fine of $100 million.

As previously reported on July 12, 2019, Facebook will pay a $5 billion penalty to the Federal Trade Commission to resolve a privacy probe into whether Facebook violated a prior FTC consent decree requiring the company to better protect user privacy. The $5 billion penalty is the largest imposed on any company for violating consumers’ privacy – nearly 20 times the largest privacy or data security penalty to date.

According to media reports, the Federal Trade Commission has approved a roughly $5 billion settlement with Facebook, Inc. to resolve a privacy probe investigating whether Facebook had violated a prior FTC consent decree requiring the company to better protect user privacy. The investigation followed reports that Cambridge Analytica improperly accessed the personal data of 87 million Facebook users.

On July 9, 2019, the hearing in the so-called Schrems II case (case C-311/18) took place at the Court of Justice of the European Union (“CJEU”) in Luxembourg. The main parties involved in the proceedings, the Irish Data Protection Commissioner (“Irish DPA”), Facebook Ireland Ltd. and the Austrian activist Max Schrems, presented their arguments to the court. In addition, a number of other stakeholders intervened during the hearing, including representatives of the European Parliament, the European Commission, the European Data Protection Board, several EU Member States (including Austria, France, Germany, Ireland, the Netherlands and the UK) and the U.S. government, as well as a number of industry lobby groups and the Electronic Privacy Information Center.

On June 14, 2019, the United States Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of Facebook, holding that the company did not violate the Illinois Biometric Information Privacy Act (“BIPA”) (740 ICLS ¶¶ 15, 20).

On May 3, 2019, the International Association of Privacy Professionals (“IAPP”) honored Centre for Information Policy Leadership (“CIPL”) President Bojana Bellamy with the 2019 IAPP Privacy Vanguard Award during its Global Privacy Summit in Washington, D.C. The IAPP also honored European Data Protection Supervisor Giovanni Buttarelli with its 2019 Privacy Leadership Award. Since the early 2000s the IAPP has recognized professionals and organizations making a difference in the world of privacy through these yearly awards.

As we previously reported in February 2017, an Illinois federal judge denied a motion to dismiss two complaints brought under the Illinois Biometric Information Privacy Act, 740 ILCS 14 (“BIPA”) by individuals who alleged that Google captured, without plaintiff’s consent, biometric data from facial scans of images that were uploaded onto Google Photos. The cases subsequently were consolidated, and on December 29, 2018, the Northern District of Illinois dismissed the case on standing grounds, finding that despite the existence of statutory standing under BIPA, neither plaintiff had claimed any injury that would support Article III standing.

On August 28, 2018, plaintiffs filed a class action lawsuit against Nielsen Holdings PLC ("Nielsen") and some of its officers and directors for making allegedly materially false and misleading statements to investors about the impact of privacy regulations and third-party business partners’ privacy policies on the company’s revenues and earnings. The case was filed in the United States District Court for the Southern District of New York. 

On December 18, 2017, the French data protection authority (“CNIL”) publicly announced that it served a formal notice to WhatsApp regarding the sharing of WhatsApp users’ data with Facebook Inc. (“Facebook”). This decision, dated November 27, 2017, follows the CNIL’s investigations regarding Facebook’s 2014 acquisition of WhatsApp. In 2016, WhatsApp updated its Terms of Service and Privacy Policy to reflect the sharing of information with Facebook. Following this update, the Article 29 Working Party (“Working Party”) requested explanations from WhatsApp on its data processing practices and data sharing, and asked the company to stop sharing data for targeted advertising purposes. The Working Party also gave a mandate to its subgroup in charge of the cooperation on investigations and sanctions to coordinate actions of the relevant national data protection authorities. It is in that context that the CNIL started its investigation of WhatsApp’s data processing practices.

On October 24, 2017, an opinion issued by the EU’s Advocate General Bot (“Bot”) rejected Facebook’s assertion that its EU data processing activities fall solely under the jurisdiction of the Irish Data Protection Commissioner. The non-binding opinion was issued in relation to the CJEU case C-210/16, under which the German courts sought to clarify whether the data protection authority (“DPA”) in the German state of Schleswig-Holstein could take action against Facebook with respect to its use of web tracking technologies on a German education provider’s fan page without first providing notice.

On August 25, 2016, WhatsApp announced in a blog post that the popular mobile messaging platform updated its Terms of Service and Privacy Policy to permit certain information sharing with Facebook. After Facebook acquired WhatsApp in 2014, the Director of the FTC’s Bureau of Consumer Protection wrote a letter to both Facebook and WhatsApp that discussed the companies’ obligations to honor privacy statements made to consumers in connection with the acquisition.

On June 13, 2016, the U.S. government expressed its wish to join the legal proceedings brought by Max Schrems concerning the validity of international data transfers under EU Standard Contractual Clauses.

Along with the U.S. government, the Irish Business and Employers Confederation and the Business Software Alliance, an industry trade group, also informed Ireland’s High Court of their desire to be added to the case as amici curiae, or "friends of the court."

On October 27, 2015, David Smith, the UK Deputy Commissioner of the Information Commissioner’s Office (“ICO”), published a blog post commenting on the ongoing Safe Harbor compliance debate in light of the Schrems v. Facebook decision of the Court of Justice of the European Union. His key message to organizations was, “Don’t panic.”

On October 20, 2015, at a hearing in the Irish High Court, Irish Data Protection Commissioner Helen Dixon confirmed that she will investigate allegations made by privacy activist Max Schrems concerning Facebook’s transfer of personal data to the U.S. in reliance on Safe Harbor. Dixon welcomed the ruling of the High Court and noted that she would proceed to “investigate the substance of the complaint with all due diligence."

On October 14, 2015, the data protection authority (“DPA”) in the German state of Schleswig-Holstein (Unabhängiges Landeszentrum für Datenschutz) issued a position paper (the “Position Paper”) on the Safe Harbor Decision of the Court of Justice of the European Union (the “CJEU”).

On October 6, 2015, the Court of Justice of the European Union (the “CJEU”) issued its judgment in the Schrems v. Facebook case, following the Opinion of the Advocate General published on September 23, 2015. In its judgment, the CJEU concluded that:

• The national data protection authorities (“DPAs”) have the power to investigate and suspend international data transfers even where the European Commission (the “Commission”) has adopted a decision finding that a third country affords an adequate level of data protection, such as Decision 2000/520 on the adequacy of the protection provided by the Safe Harbor Privacy Principles (the “Safe Harbor Decision”).
• The Safe Harbor Decision is invalid.

On September 29, 2015, the Court of Justice of the European Union (“CJEU”) announced that it will deliver its judgment in the Schrems vs. Facebook case on October 6, 2015. The CJEU’s judgment will be the final ruling in the case, and comes after the Advocate General’s Opinion regarding Safe Harbor earlier this week.

Recent class actions filed against Facebook and Shutterfly are the first cases to test an Illinois law that requires consent before biometric information may be captured for commercial purposes. Although the cases focus on biometric capture activities primarily in the social-media realm, these cases and the Illinois law at issue have ramifications for any business that employs biometric-capture technology, including those who use it for security or sale-and-marketing purposes. In a recent article published in Law360, Hunton & Williams partner, Torsten M. Kracht, and associate, Rachel E. Mossman, discuss how businesses already using these technologies need to keep abreast of new legislation that might affect the legality of their practices, and how businesses considering the implementation of these technologies should consult local rules and statutes before implementing biometric imaging.

On June 9, 2015, Max Schrems tweeted that the Advocate General of the European Court of Justice (“ECJ”) will delay his opinion in Europe v. Facebook, a case challenging the U.S.-EU Safe Harbor Framework. The opinion was previously scheduled to be issued on June 24. No new date has been set.

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 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 April 21, 2014, the Securities and Exchange Commission’s Division of Corporation Finance published new Compliance and Disclosure Interpretations (“C&DIs”) concerning the use of social media in certain securities offerings, business combinations and proxy contests. Notably, the C&DIs permit the use of an active hyperlink to satisfy the cautionary legend requirements in social media communications when the social media platform limits the text or number of characters that may be included (e.g., Twitter). The C&DIs also clarify that postings or messages re-transmitted by unrelated third parties generally will not be attributable to the issuer (so issuers will not be required to ensure that third parties comply with the guidance). In addition, requirements regarding cautionary legends contemplated by the C&DIs apply to both issuers and other soliciting parties in proxy fights or tender offers. Accordingly, although the new guidance will allow issuers to communicate with their shareholders and potential investors via social media, it also may prove useful to activists in proxy fights and tender offers.

On April 10, 2014, the Federal Trade Commission announced that the Director of the FTC’s Bureau of Consumer Protection had notified Facebook and WhatsApp Inc., reminding both companies of their obligation to honor privacy statements made to consumers in connection with Facebook’s proposed acquisition of WhatsApp.

On January 24, 2014, the Chamber Court of Berlin rejected Facebook’s appeal of an earlier judgment by the Regional Court of Berlin in cases brought by a German consumer rights organization. In particular, the court: 

The Luxembourg data protection authority (Commission nationale pour la protection des donées, “CNPD”) has stated that it will not investigate complaints relating to the alleged involvement of Microsoft Luxembourg (“Microsoft”) and Skype Software S.a.r.l. and Skype Communications S.a.r.l. (collectively, “Skype”) in the PRISM surveillance program. The PRISM surveillance program involves the transfer of EU citizens’ data to the U.S. National Security Agency (the “NSA”).

As reported in the Hunton Employment & Labor Perspectives Blog:

The U.S. District Court for the District of New Jersey recently ruled that non-public Facebook wall posts are protected under the Federal Stored Communications Act (the “SCA”) in Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-CV-3305 (WMJ) (D.N.J. Aug. 20, 2013). The plaintiff was a registered nurse and paramedic at Monmouth-Ocean Hospital Service Corp. (“MONOC”). She maintained a personal Facebook profile and was “Facebook friends” with many of her coworkers but none of the MONOC managers. She adjusted her privacy preferences so only her “Facebook friends” could view the messages she posted onto her Facebook wall. Unbeknownst to the plaintiff, a coworker who was also a “Facebook friend” took screenshots of the plaintiff’s wall posts and sent them to a MONOC manager. When the manager learned of a wall post in which the plaintiff criticized Washington, D.C. paramedics in their response to a museum shooting, MONOC temporarily suspended the plaintiff with pay and delivered a memo warning her that the wall post reflected a “deliberate disregard for patient safety.” The plaintiff subsequently filed suit alleging violations of the SCA, among other claims.

On August 26, 2013, the U.S. District Court for the Northern District of California approved a settlement with Facebook, Inc., related to the company’s alleged misappropriation of certain Facebook members’ personal information, such as names and profile pictures, that was then used in ads to promote products and services via Facebook’s “Sponsored Stories” program.

As reported by Bloomberg BNA, the Irish Office of the Data Protection Commissioner (“ODPC”) has stated that it will not investigate complaints relating to the alleged involvement of Facebook Ireland Inc. (“Facebook”) and Apple Distribution International (“Apple”) in the PRISM surveillance program.

Today, July 1, 2013, the Federal Trade Commission’s changes to the Children’s Online Privacy Protection Rule (the “Rule”) officially come into effect. On December 19, 2012, the FTC announced that it had published the amended Rule following two years of public comments and multiple reviews of various proposed changes.

On May 20, 2013, the Irish Office of the Data Protection Commissioner (“ODPC”) published its annual report for 2012 (the “Report”). The Report summarizes the activities of the ODPC during 2012, including its investigations and audits, policy matters, and European and international activities.

On April 22, 2013, the higher administrative court of Schleswig issued two decisions rejecting an appeal by the data protection authority of Schleswig-Holstein (“Schleswig DPA”) that sought to challenge a lower court’s earlier rulings in Facebook’s favor.

On February 1, 2013, the Federal Trade Commission issued a new report entitled Mobile Privacy Disclosures: Building Trust Through Transparency. The report makes recommendations “for the major participants in the mobile ecosystem as they work to improve mobile privacy disclosures,” offering specific recommendations for mobile platforms, app developers, advertising networks and other third parties operating in this space. The FTC’s report also makes mention of the Department of Commerce’s National Telecommunications and Information Administration’s efforts to engage in a multistakeholder process to develop an industry code of conduct for mobile apps.

As reported in the Hunton Employment & Labor Perspectives Blog:

Employees use social media extensively in communication for personal and business reasons. Employers are increasingly monitoring this use, and insisting on access to some of the more popular sites. California took notice of this trend and passed legislation to protect employee privacy. On September 27, 2012, Governor Edmund G. Brown Jr. signed AB 1844 making California the third state to limit access to employees’ social media account, joining Maryland and Illinois.

On August 10, 2012, the Federal Trade Commission announced that it has accepted the final settlement with Facebook which resolves allegations “that Facebook deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing it to be shared and made public.” As we previously reported, the settlement requires Facebook to (1) not misrepresent how it maintains the privacy or security of users’ personal information; (2) obtain users’ “affirmative express consent” before sharing their information with any third ...

In recent months, two high-profile cases involving Hulu and Netflix have raised questions regarding the scope and application of the Video Privacy Protection Act (“VPPA”), a federal privacy law that has been the focus of increasing attention over the past few years. In the Hulu case, Hulu users claimed that the subscription-based video streaming service disclosed their viewing history to third parties. Specifically, their complaint alleges that Hulu worked with KISSmetrics, a data analytics company, to track subscribers’ viewing histories and then share that information with third parties such as Facebook. In its response, Hulu has maintained that it is not subject to the VPPA because it is not a “video tape service provider,” which is defined in relevant part as “any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials…” Alternatively, Hulu has argued that its information sharing with third parties was permitted by the VPPA’s exception that allows disclosures “incident to the ordinary course of business of the video tape service provider.” The case, which currently is headed to mediation, could have far-reaching effects if it is determined that video streaming services are subject to the VPPA’s requirements.

On April 9, 2012, Maryland became the first state to pass legislation that would prevent employers from asking or forcing employees and applicants to hand over their social media login credentials. The bill, which passed the state Senate unanimously (Senate Bill 433) and the House of Delegates by a wide margin (House Bill 964), now awaits Maryland Governor Martin O’Malley’s signature.

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.

As reported in the Hunton Employment & Labor Perspectives Blog, last week, the NLRB’s Acting General Counsel, Lafe Solomon, released a second report containing guidance relating to employee use of social media. This report comes less than six months after the release of the NLRB’s first report on the subject in August 2011. Like the August report, the new release summarizes a number of recent cases decided by the NLRB in which an employee was terminated at least in part because of his or her comments on social media websites.

Read the full post, which discusses key themes that emerge ...

On December 1, 2011, a consolidated litigation against Netflix was ordered to private mediation pursuant to an agreement between the parties. As we previously reported, the plaintiffs allege that Netflix’s practice of maintaining customer movie rental history and recommendations after their subscriptions are cancelled violates the federal Video Privacy Protection Act (“VPPA”). In August 2011, several similar cases against Netflix were consolidated by a federal court in California.

News of the mediation order comes as a significant amendment to the VPPA awaits Senate ...

On November 29, 2011, the Federal Trade Commission announced that Facebook has settled charges that it deceived consumers by making false privacy promises. The settlement requires Facebook to (1) not misrepresent how it maintains the privacy or security of users’ personal information (2) obtain users’ “affirmative express consent” before sharing their information with any third party that “materially exceeds the restrictions imposed by a user’s privacy setting(s),” (3) implement procedures to prevent a third party from accessing users’ information no later than 30 days after the user has deleted such information or terminated his or her account, (4) establish, implement and maintain a comprehensive privacy program, and (5) obtain initial and biennial assessments and reports regarding its privacy practices for the next 20 years.

On November 16, 2011, the French Data Protection Authority (the “CNIL”) published its Annual Activity Report for 2010 (the “Report”) highlighting its main 2010 accomplishments and outlining some of its priorities for the upcoming year. This year’s Report covers events that occurred since last year’s publication of the Annual Activity Report for 2009.

On November 17, 2011, Senator Jay Rockefeller (D-WV), Chair of the Senate Committee on Commerce, Science and Transportation, issued a statement emphasizing the need for increased consumer protection on the Internet. Rockefeller cited “disturbing” reports about Facebook’s ability to track non-members and members who have logged out of the site, stating that companies should not be tracking users without their consent.

On October 27, 2011, the United States District Court for the Northern District of California dismissed claims that Facebook misappropriated users’ names and likenesses in promoting its “Friend Finder” feature. Friend Finder identifies potential “friends” for a Facebook user by matching his or her email contacts with users already registered with Facebook, then presenting the user with friend suggestions. Facebook promoted the feature by displaying the names and profile photos of current friends as examples of users who had found friends with Friend Finder.

On September 8, 2011, Richard Allan, Facebook’s Director of European Public Policy, met with the German Federal Ministry of the Interior (the “Ministry”) and endorsed the Ministry’s initiative for a future self-regulatory code for social networks with a focus on data security, consumer protection and the protection of minors.

As reported in the Hunton Employment & Labor Perspectives Blog, on August 18, 2011, the National Labor Relations Board’s Acting General Counsel issued a report discussing fourteen social media cases recently decided by the Board.  The cases highlighted in the report offer insight regarding how the NLRB will handle various social media issues in the future.

Read the full post, which provides an overview of several of the cases highlighted in the NLRB’s report.

On August 19, 2011, the Data Protection Commissioner’s Office of the German federal state of Schleswig-Holstein (“ULD”) ordered all businesses in that state “to shut down their fan pages on Facebook and remove social plug-ins such as the ‘like’-button from their websites.”  Although this warning is specific to Facebook users, the regulator’s explanation of its motives reveals a fundamental concern about common data analytics practices:

“By using the Facebook service traffic and content data are transferred into the USA and a qualified feedback is sent back to the website owner concerning the web page usage, the so called web analytics (Ger.: Reichweitenanalyse).  Whoever visits facebook.com or uses a plug-in must expect that he or she will be tracked by the company for two years.  Facebook builds a broad individual and for members even a personalised profile.  Such a profiling infringes German and European data protection law.  There is no sufficient information of users and there is no choice; the wording in the conditions of use and privacy statements of Facebook does not nearly meet the legal requirements relevant for compliance of legal notice, privacy consent and general terms of use.”

On July 25, 2011, Netflix stated that it will hold off on the launch of its Facebook integration in the U.S. due to legal issues related to the Video Privacy Protection Act (“VPPA”).  The new Facebook feature would allow Netflix subscribers to share their movie viewing information with friends online.  Netflix indicated in its second quarter shareholder letter that it supports House Bill 2471 (“H.B. 2471”), a proposed bipartisan amendment to the VPPA intended to clarify the consent requirement for sharing consumer video viewing information.  The letter states that “[u]nder the VPPA, it is ambiguous when and how a user can give permission for his or her video viewing data to be shared” and that the VPPA “discourages us from launching our Facebook integration domestically.”  As a result, the company plans to limit the campaign to Canada and Latin America until questions concerning the VPPA are resolved.

Recent developments involving the use of facial recognition technology have raised privacy concerns in the United States, Europe and Canada.  As we reported earlier this month, the Electronic Privacy Information Center (“EPIC”) and several other consumer privacy advocacy groups filed a complaint with the Federal Trade Commission against Facebook for its use of facial recognition technology.  According to EPIC’s complaint, Facebook’s Tag Suggestions feature recognizes individuals’ faces based on photographs already on Facebook, then suggests that users “confirm Facebook’s identification of facial images in user photos” when they upload new photos to their Facebook profiles.

On June 10, 2011, the Electronic Privacy Information Center (“EPIC”) filed a complaint with the Federal Trade Commission, claiming that Facebook’s facial recognition and automated online image identification features harm consumers and constitute “unfair and deceptive acts and practices.” According to a post on The Facebook Blog, the Tag Suggestions feature matches uploaded “new photos to other photos [the user is] tagged in.”  Facebook then “[groups] similar photos together and, whenever possible, suggest[s] the name of the friend in the photos.”  On June 13, 2011, Congressman Edward Markey (D-MA) released a statement supporting the complaint and indicating that he will “continue to closely monitor this issue.”

A new bill proposed in California, the Social Networking Privacy Act (the “Act”), would force social networking websites to establish default privacy settings for their users that prohibit such sites from publicly displaying most information about users without the users’ consent.  Given that many social networking websites currently have default settings that make user personal information and photos public unless the user changes those settings, the Act would represent a fundamental shift in social networking privacy.

As reported in Hunton & Williams' Employment & Labor Perspectives blog:

The National Labor Relations Board (“NLRB”) regional offices addressing complaints involving employers’ social media policies must seek advice from the NLRB’s Division of Advice before taking any action.  The memorandum, issued by the NLRB’s Office of the General Counsel on April 12th, added social media disputes to the list of matters that must be submitted to the Division of Advice.  The Division of Advice is responsible for issuing opinions on difficult or novel labor issues.

As reported in Hunton & Williams' Employment & Labor Perspectives blog:

An employer who allegedly posted to an employee’s Facebook and Twitter accounts without her consent may face liability for its actions, according to a federal judge in Illinois.  The case is Maremont v. Susan Fredman Design Group, Ltd., in the U.S. District Court for the Northern District of Illinois (2011 U.S. Dist. LEXIS 26441, March 15, 2011).

The Plaintiff, Jill E. Maremont, worked as the Director of Marketing, Public Relations and E-Commerce for an interior designer and her company, Susan Fredman and the Susan Fredman Design Group, Ltd. (Defendants).  Maremont contends she created a “popular personal following” on Facebook and Twitter, and she also created a company blog called “Designer Diaries: Tales from the Interior.”

As reported in Hunton & Williams' Employment & Labor Perspectives blog:

A recent New York state trial court decision, Romano v. Steelcase Inc., et al., is representative of a recent trend of parties seeking, and courts permitting, discovery of information on social networking sites such as Facebook and MySpace.  Rejecting the plaintiff’s privacy concerns, the Romano court held that such information is discoverable because the plaintiff’s damages are at issue.  The court ordered the release of the plaintiff’s postings, pictures and other information on the social networking sites.

Reporting from Israel, legal consultant Dr. Omer Tene writes:

On July 28, 2010, the Israeli Supervisor of Banks, Rony Hizkiyahu, issued a letter to the CEOs of all local banks expressing concern over the banks' and their employees' use of online social networks, including both proprietary Web 2.0 tools and networking sites such as Facebook, Twitter, LinkedIn, MySpace and YouTube, all of which are explicitly referred to in the letter.  The Supervisor of Banks, Israel’s banking regulator, requires banks to take steps to ensure data protection and information security, including ...

Bret Taylor, the Chief Technology Officer of Facebook, announced this week on the Facebook Blog that the company will enhance privacy protections pertaining to third-party applications.  When a Facebook user logs into a third-party application with his or her Facebook account, the application will only be able to access the public parts of the user’s Facebook profile.  If the application wants to access private sections of a user’s Facebook profile, the application has to explicitly ask the Facebook user for permission.  For example, if a greeting card application wants to ...

On May 26, 2010, the court in Crispin v. Christian Audigier, Inc. quashed portions of subpoenas seeking the disclosure of private messages sent through Facebook and MySpace.  The court left open the question of whether Crispin’s wall postings and comments should be disclosed pending a more thorough review of his online privacy settings.

Legislators at the federal and state levels are urging social networking websites to enhance privacy protections available to their users.  On April 27, 2010, four U.S. Senators wrote a letter to Facebook’s CEO expressing “concern regarding recent changes to the Facebook privacy policy and the use of personal data on third party websites.”  The letter urged Facebook to provide opt-in mechanisms for users, as opposed to lengthy opt-out processes, and highlighted default sharing of personal information, third-party advertisers’ data storage and instant personalization features as three areas of concern.

Pursuant to a public complaint, on January 27, 2010, the Privacy Commissioner of Canada announced a new investigation into Facebook.  The investigation concerns the social networking site’s introduction of a tool that required its users to review their privacy settings in December 2009.  According to the complaint, Facebook’s new default settings allegedly made some users’ information more accessible than previously had been the case.  Elizabeth Denham, the Assistant Privacy Commissioner, indicated “[s]ome Facebook users are disappointed by certain changes being ...

On December 17, 2009, the Electronic Privacy Information Center (“EPIC”) filed a complaint with the FTC claiming that Facebook is engaging “unfair and deceptive trade practices” by changing its privacy policies.  Notably, the changes allow anyone who browses the Internet to view a Facebook user’s name, profile picture, gender, geographic region and list of friends.  Facebook has stated that it implemented these changes to make it easier to find individual users among the estimated 350 million Facebook users.

On November 12, 2009, the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V., “vzbv”), a non-governmental organization acting as an umbrella for 41 German consumer associations announced that the social networks Xing, MySpace, Facebook, Lokalisten, Wer-kennt-Wen and StudiVZ signed undertakings that they would discontinue use of certain terms and conditions and data protection provisions.  The vzbv sent warning notices to the six leading social network providers regarding a number of clauses.

The main criticism from vzbv referred to ...

Behavioral targeting on the Internet has recently come under the scrutiny of lawmakers and privacy advocates.  This increased interest has been triggered in part by Facebook’s and Google’s recent adoption of targeted advertising practices.  In response to growing concerns over behavioral tracking, three U.S. congressmen are preparing a draft bill that would mandate the disclosure of monitoring practices for advertising purposes.  The goal of the bill is to increase transparency and provide individuals with the opportunity to learn what information is being collected about them, by whom and how the information will be used.  At present, there are suggested best practices set forth in the Federal Trade Commission’s (“FTC’s”) Staff Report on Self-Regulatory Principles for Online Behavioral Advertising.  These Self-Regulatory Principles are designed to encourage industry self regulation for the protection of consumer privacy in online advertising activities.  The FTC is in the process of reviewing the privacy issues raised by online behavioral advertising over the course of the last decade.  An FTC Town Hall meeting to address behavioral advertising practices was hosted in November 2007.  In response to the comments received at the Town Hall meeting, the FTC issued Self-Regulatory Principles to promote industry self-regulation.  If enacted, the proposed bill would frustrate industry’s nascent efforts to self-regulate in this area.