Posts tagged Social Media.
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Last week, Utah Governor Spencer J. Cox signed three privacy-related bills into law. The bills are focused on, respectively, protection of motor vehicle consumer data, regulations on social media companies with respect to minors, and access to protected health information by third parties. The Utah legislature appears to be focused on data-related legislation this session, as Governor Cox signed two other bills related to AI into law last week as well.

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On February 12, 2024, a federal court in the Southern District of Ohio issued an order granting a Motion for a Preliminary Injunction, prohibiting the Ohio Attorney General from implementing and enforcing the Parental Notification by Social Media Operators Act, Ohio Rev. Code § 1349.09(B)(1) (the “Act”).

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On January 9, 2024, an Ohio federal judge placed a temporary restraining order on Ohio’s Parental Notification by Social Media Operators Act, Ohio Rev. Code § 1349.09(B)(1) (the “Act”), which was approved in July 2023 and was set to go into effect on January 15,2024. Under the Act, parents must provide consent for children under 16 to set up an account on social media and online gaming platforms. The platform operators must also provide parents with a list of content moderation features.

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On October 26, 2023, the UK Online Safety Act (the “Act”) received Royal Assent, making it law in the UK. The Act seeks to protect children from online harm and imposes obligations on relevant organizations, including social media platforms, to prevent and remove illegal and harmful content. In a press release, the UK Government stated that the Act “takes a zero-tolerance approach to protecting children from online harm, while empowering adults with more choices over what they see online.” For example, the Act requires relevant organizations to:

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On September 29, 2023, the Supreme Court of the United States (“SCOTUS”) accepted petitions challenging the constitutionality of social media laws in Florida and Texas. Florida’s law, S.B. 7072, prohibits “a social media platform from willfully deplatforming a [political] candidate.” Texas’s law, H.B. 20, refers to social media platforms as “common carriers” that are “central public forums for public debate,” and requires common carriers to publicly disclose information related to the common carrier’s method of recommending content to users, content moderation efforts, use of algorithms to determine search results, and the common carrier’s ordinary disclosures to its users on user performance data for each of its platforms. Both of these laws were challenged by NetChoice, LLC, a national trade association of large online businesses, who had recent successes in blocking several laws, including the California Age-Appropriate Design Code and a similar social media law in Arkansas.

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On July 5, 2023, Ohio Governor, Mike DeWine, signed into law House Bill 33, which includes the Social Media Parental Notification Act (“Act”).

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On September 6, 2023, the European Commission designated six companies as gatekeepers under Article 3 of the Digital Markets Act (“DMA”). The new gatekeepers are Alphabet, Amazon, Apple, ByteDance, Meta and Microsoft. Jointly, these companies provide 22 core platform services, including social networks, internet browsers, operating systems and mobile app stores.

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On August 24, 2023, 12 data protection authorities published a joint statement calling for the protection of personal data from unlawful data scraping. The statement was issued by the authorities of Argentina, Australia, Canada, Colombia, Hong Kong, Jersey, Mexico, Morocco, New Zealand, Norway, Switzerland and the UK. The joint statement reminds organizations that personal data that is publicly accessible is still subject to data protection and privacy laws in most jurisdictions, and highlights the risks facing such data, including increased risk of social engineering or phishing attacks, identify fraud, and unwanted direct marketing or spam.

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On June 28, 2023, Louisiana Governor John Bel Edwards signed into law H.B. 61, which requires interactive computer services to get parental consent (or consent from a legal representative of a minor) to enter into a contract or other agreement, including the creation of an online account, with minors younger than 18 years of age. The Act comes after similar laws enacted in Texas, Utah and Arkansas. H.B. 61 will take effect on August 1, 2024. 

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On May 4, 2023, the Florida Senate and House of Representatives voted in favor of sending the Florida Digital Bill of Rights (“FDBR”) and other amendments related to government moderation of social media and protection of children in online spaces (S.B. 262) to Governor Ron DeSantis for signature. Unlike the other comprehensive state privacy laws that have been enacted, the FDBR applies to a much narrower subset of entities.

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On April 12, 2023, Arkansas Governor Sarah Huckabee Sanders signed into law S.B. 396 creating the state’s Social Media Safety Act (the “Act”). The Act comes after Utah’s similar social media laws enacted in March.

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On March 3, 2023, the U.S. Department of Justice (“DOJ”) released an update to its Evaluation of Corporate Compliance Programs guidance (“ECCP Guidance”). The ECCP Guidance serves as a guidance document for prosecutors when evaluating a corporate compliance program. Among other updates, the ECCP Guidance now includes new guidance for assessing how companies govern employees’ use of personal devices, communication platforms and messaging applications.

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On March 16, 2023, the Federal Trade Commission announced it issued orders to eight social media and video streaming platforms seeking Special Reports on how the platforms review and monitor commercial advertising to detect, prevent and reduce deceptive advertisements, including those related to fraudulent healthcare products, financial scams and the sale of fake goods. The FTC sent the orders pursuant to its resolution directing the FTC to use all available compulsory process to inquire into this topic, and using the FTC’s Section 6(b) authority, which authorizes the FTC to conduct studies that do not have a specific law enforcement purpose.

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On March 1-3, 2023, the Utah legislature passed a series of bills, SB 152 and HB 311, regarding social media usage for minors. For social media companies with more than five million users worldwide, SB 152 would require parental permission for social media accounts for users under age 18, while HB 311 would hold social media companies liable for harm minors experience on the platforms. Both bills have been sent to the governor’s desk for signature.

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On February 24, 2023, following public consultation, the European Data Protection Board (EDPB) published the following three sets of adopted guidelines:

  1. Guidelines on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V GDPR (05/2021) (final version);
  2. Guidelines on certification as a tool for transfers (07/2022) (final version); and
  3. Guidelines on deceptive design patterns in social media platform interfaces (03/2022) (final version).
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On February 14, 2023, the U.S. Senate Committee on the Judiciary held a hearing titled, “Protecting Our Children Online.” Chaired by Sen. Durbin, the hearing examined the potentially harmful effects of social media use on young people, and represented a renewal of the Committee’s efforts to pass legislation to protect children and teenagers online. In 2022, the Senate Judiciary Committee approved several bills designed to enhance the online safety and wellbeing of children and teenagers, among them the Kids Online Protection Act (“KOSA”), but the bills did not receive a floor vote. During the hearing, Democratic and Republican senators expressed their commitment to pass bills that would limit the immunity of social media companies under Section 230 of the Communications Decency Act, and would require website and app developers to design products that protect young people from cyberbullying, online sexual exploitation, social media addiction, and other harms. 

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On January 12, 2023, the French Data Protection Authority (the “CNIL”) announced a €5,000,000 fine for the social network TikTok for violations of applicable cookie rules. The fine was imposed at the end of 2022.

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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.

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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.

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On October 26, 2022, House Energy and Commerce Committee and Consumer Protection and Commerce Subcommittee leaders (“Committee Leaders”) sent letters to several toy manufacturers, including Bandai Namco, Hasbro, Mattel, MGA Entertainment, LEGO Group and the Toy Association, asking how they plan to protect children and their information from BigTech companies like TikTok and YouTube. Given the shift of marketing efforts from traditional television outlets to social media platforms, Committee Leaders are concerned about failure to protect children’s privacy, security and mental health on social media platforms.

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On October 17, 2022, the French Data Protection Authority (the “CNIL”) imposed a €20 million fine on Clearview AI for unlawful use of facial recognition technology. The fine was imposed after the CNIL’s prior formal notice remained unaddressed by Clearview AI.

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On September 26, 2022, the UK Information Commissioner’s Office (“ICO”) confirmed in a statement that it issued TikTok Inc. and TikTok Information Technologies UK Limited (together, “TikTok”) a notice of intent to potentially impose a £27 million fine for failing to protect children’s privacy. This notice of intent follows an investigation by the ICO finding that TikTok may have breached UK data protection law between May 2018 and July 2020 by failing to protect children’s privacy when using the TikTok platform.

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On September 15, 2022, California Governor Gavin Newsom signed into law the California Age-Appropriate Design Code Act (the “Act”). The Act, which takes effect July 1, 2024, places new legal obligations on companies with respect to online products and services that are “likely to be accessed by children” under the age of 18.

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On September 5, 2022, the Irish Data Protection Commissioner (the “DPC”) imposed a €405,000,000 fine on Instagram (a Meta-owned social media platform) for violations of the EU General Data Protection Regulation’s (“GDPR’s”) rules on the processing of children’s personal data.

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On June 10, 2022, New York became the first state to require attorneys to complete at least one credit of cybersecurity, privacy and data protection training as part of their continuing legal education (“CLE”) requirements. The new requirement will take effect July 1, 2023.

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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.

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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.

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On May 25, 2022, Twitter reached a proposed $150 million settlement with the Department of Justice (“DOJ”) and the Federal Trade Commission to resolve allegations that the company deceptively used nonpublic user contact information obtained for account security purposes to serve targeted ads to Twitter users. In a complaint filed in federal court, the government alleged that Twitter violated both the FTC Act and a 2011 FTC Order by misrepresenting the extent to which the company maintained and protected users’ nonpublic contact information. The proposed settlement would require Twitter to pay $150 million in civil penalties and implement a comprehensive privacy and information security program “with extensive procedures to safeguard user information and assess internal and external data privacy risks.”

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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.

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On March 2, 2022, eight states announced a bipartisan, nationwide investigation into whether TikTok operates in a way that causes or exacerbates harm to the physical and mental health of children, teens and young adults. The probe will further consider whether the company violated state consumer protection laws and put the public at risk.

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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.

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On February 18, 2022, the Texas Attorney General’s Office (the “Texas AG”) announced that it had issued two Civil Investigative Demands (“CIDs”) to TikTok Inc. The Texas AG’s investigation focuses on TikTok’s alleged violations of children’s privacy and facilitation of human trafficking, along with other potential unlawful conduct.

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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.

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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.

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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.

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On June 9, 2021, President Biden signed an Executive Order on Protecting Americans’ Sensitive Data from Foreign Adversaries (the “EO” or “Biden EO”). The Biden EO elaborates on measures to address the national emergency regarding the information technology supply chain declared in 2019 by the Trump administration in Executive Order 13873. Simultaneously, the Biden EO also revokes three Trump administration orders (Executive Orders 13942, 13943 and 13971) that sought to prohibit transactions with TikTok, WeChat, their parent companies and certain other “Chinese connected software applications.” In their place, the Biden EO provides for (1) cabinet-level assessments and future recommendations to protect against risks from foreign adversaries’ (a) access to U.S. persons’ sensitive data and (b) involvement in software application supply and development; and (2) the continuing evaluation of transactions involving connected software applications that threaten U.S. national security.

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On December 14, 2020, the Federal Trade Commission announced that it had issued orders to nine social media and video streaming companies, requesting information on how the companies collect, use and present personal information, their advertising and user engagement practices and how their practices affect children and teens. The orders will assist the FTC in conducting a study of these policies, practices and procedures. The FTC issued the orders pursuant to Section 6(b) of the FTC Act, which allows the agency to undertake broad studies separate from its law enforcement activities.

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On December 15, 2020, the Irish Data Protection Commission (“DPC”) announced its fine of €450,000 against Twitter International Company (“Twitter”), following its investigation into a breach resulting from a bug in Twitter’s design. The fine is the largest issued by the Irish DPC under the EU General Data Protection Regulation (“GDPR”) to date and is also its first against a U.S.-based organization.

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On November 27, 2020, New Mexico Attorney General Hector Balderas filed a notice of appeal to the U.S. Court of Appeals for the Tenth Circuit in the lawsuit it brought against Google on February 20, 2020, regarding alleged violations of the federal Children’s Online Privacy Protection Act (“COPPA”) in connection with G-Suite for Education (“GSFE”). As we previously reported, the U.S. District Court of New Mexico had granted Google’s motion to dismiss, in which it asserted that its terms governed the collection of data through GSFE and that it had complied with COPPA by using schools both as “intermediaries” and as the parent’s agent for parental notice and consent, in line with Federal Trade Commission Guidance.

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On September 25, 2020, the District Court of New Mexico granted Google’s motion to dismiss a lawsuit filed on February 20, 2020, by New Mexico Attorney General Hector Balderas alleging, among other claims, that the company violated the federal Children’s Online Privacy Protection Act (“COPPA” or the “Act”) by using G Suite for Education to “spy on New Mexico students’ online activities for its own commercial purposes, without notice to parents and without attempting to obtain parental consent.”

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On September 18, 2020, the U.S. Department of Commerce (“Commerce”) announced detailed sanctions relating to the mobile applications WeChat and TikTok. These prohibitions were issued in accordance with President Trump’s Executive Orders issued on August 6, 2020, imposing economic sanctions against the platforms under the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.) and the National Emergencies Act (50 U.S.C. § 1601 et seq.). These orders, if they become fully effective, will (1) prohibit mobile app stores in the U.S. from permitting downloads or updates to the WeChat and TikTok mobile apps; (2) prohibit U.S. companies from providing Internet backbone services that enable the WeChat and TikTok mobile apps; and (3) prohibit U.S. companies from providing services through the WeChat mobile app for the purpose of transferring funds or processing payments to or from parties. The sanctions do not target individual or business use of the applications but are expected to degrade the ability of persons in the United States to use the apps for the purposes they were designed to serve.

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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”).

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UPDATE: On September 29, 2020, California Governor Gavin Newsom vetoed AB 1138.

On September 8, 2020, AB 1138, the Parent’s Accountability and Child Protection Act, was enrolled and presented to the California Governor for signature. If signed into law by the Governor, the bill would require a business that operates a social media website or application, beginning July 1, 2021, to obtain verifiable parental consent for California-based children that the business “actually knows” are under 13 years of age (hereafter, “Children”). The bill defines “social media” to mean an electronic service or account held open to the general public to post, on either a public or semi-public page dedicated to a particular user, electronic content or communication, including but not limited to videos, photos or messages intended to facilitate the sharing of information, ideas, personal messages or other content.

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The Age Appropriate Design Code (the “code”) created by the UK Information Commissioner’s Office (the “ICO”) has completed the Parliamentary process and was issued by the ICO on August 12, 2020. It will come into force on September 2, 2020, with a 12-month transition period for online services to conform to the code.

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On August 6, 2020, President Trump signed executive orders imposing new economic sanctions under the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.) and the National Emergencies Act (50 U.S.C. § 1601 et seq.) against TikTok, a video-sharing mobile application, and WeChat, a messaging, social media and mobile payments application. The orders potentially affect tens of millions of U.S. users of these applications and billions of users worldwide.

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On May 19, 2020, the Belgian Data Protection Authority (the “Belgian DPA”) announced that the Litigation Chamber had imposed a €50,000 fine on a social media provider for unlawful processing of personal data in connection with the “invite-a-friend” function offered on its platform.

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In part two of our podcast by Never Stop Learning, Lisa Sotto, partner and chair of Hunton Andrews Kurth’s Privacy and Cybersecurity practice, and Eric Friedberg, Co-President of Stroz Friedberg, LLC, and Aon’s Cyber Solutions Group, discuss the fragmented nature of data security law in the U.S. and abroad. Sotto notes that the “patchwork quilt of regulation” in the U.S. regarding data security makes it difficult for companies to know what rules to implement. She stresses that the severity of cyber attacks has increased significantly over the past decade.

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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.

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On January 21, 2020, the UK Information Commissioner’s Office (“ICO”) published the final version of its Age Appropriate Design Code (“the code”), which sets out the standards that online services need to meet in order to protect children’s privacy. It applies to providers of information services likely to be accessed by children in the UK, including applications, programs, websites, social media platforms, messaging services, games, community environments and connected toys and devices, where these offerings involve the processing of personal data.

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On December 11, 2019, an updated version of India’s draft data privacy bill was introduced in the Indian Parliament (the “Draft Bill”) by the Ministry of Electronics and Information Technology (“MeitY”). The Draft Bill updates a prior version submitted to MeitY in July 2018.

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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.

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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”).

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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).

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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.

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Social media platforms, file hosting sites, discussion forums, messaging services and search engines in the UK are likely to come under increased pressure to monitor and edit online content after the UK Department of Digital, Culture, Media and Sport (“DCMS”) announced in its Online Harms White Paper (the “White Paper”), released this month, proposals for a new regulatory framework to make companies more responsible for users’ online safety. Notably, the White Paper proposes a new duty of care owed to website users, and an independent regulator to oversee compliance.

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On February 12, 2019, the European Data Protection Board (the “EDPB”) released its work program for 2019 and 2020 (the “Work Program”). Following the EDPB’s endorsement of the Article 29 Working Party guidelines and continued guidance relating to new EU General Data Protection Regulation (“GDPR”) concepts, the EDPB plans to shift its focus to more specialized areas and technologies.

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On June 12, 2018, Vietnam’s parliament approved a new cybersecurity law  that contains data localization requirements, among other obligations. Technology companies doing business in the country will be required to operate a local office and store information about Vietnam-based users within the country. The law also requires social media companies to remove offensive content from their online service within 24 hours at the request of the Ministry of Information and Communications and the Ministry of Public Security’s cybersecurity task force. Companies could face ...
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On January 28, 2018, Facebook published its privacy principles and announced that it will centralize its privacy settings in a single place.
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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.

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On May 16, 2017, the Governor of the State of Washington, Jay Inslee, signed into law House Bill 1493 (“H.B. 1493”), which sets forth requirements for businesses who collect and use biometric identifiers for commercial purposes. The law will become effective on July 23, 2017. With the enactment of H.B. 1493, Washington becomes the third state to pass legislation regulating the commercial use of biometric identifiers. Previously, both Illinois and Texas enacted the Illinois Biometric Information Privacy Act (740 ILCS 14) (“BIPA”) and the Texas Statute on the Capture or Use of Biometric Identifier (Tex. Bus. & Com. Code Ann. §503.001), respectively.

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On October 3, 2016, the Texas Attorney General announced a $30,000 settlement with mobile app developer Juxta Labs, Inc. (“Juxta”) stemming from allegations that the company violated Texas consumer protection law by engaging in false, deceptive or misleading acts or practices regarding the collection of personal information from children.

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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.

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On December 27, 2015, the Standing Committee of the National People’s Congress of the People’s Republic of China published the P.R.C. Anti-Terrorism Law. The law was enacted in response to a perceived growing threat from extremists and terrorists, particularly in regions in Western China, and came into effect on January 1, 2016.

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On October 15 and 16, 2015, Hunton & Williams is pleased to sponsor PDP’s 14th Annual Data Protection Compliance Conference in London. Bridget Treacy, Head of the UK Privacy and Cybersecurity practice at Hunton & Williams, chairs the conference, which features speakers from the data protection industry, including Christopher Graham, UK Information Commissioner, and Rosemary Jay, senior consultant attorney at Hunton & Williams.

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On August 7, 2015, Delaware Governor Jack Markell signed four bills into law concerning online privacy. The bills, drafted by the Delaware Attorney General, focus on protecting the privacy of website and mobile app users, children, students and crime victims.

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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.

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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.

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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.

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On May 11, 2015, the French Data Protection Authority (“CNIL”) and the UK Information Commissioner’s Office (”ICO”) announced that they will participate in a coordinated online audit to assess whether websites and apps that are directed toward children, and those that are frequently used by or popular among children, comply with global privacy laws. The audit will be coordinated by the Global Privacy Enforcement Network (“GPEN”), a global network of approximately 50 data protection authorities (“DPAs”) from around the world.

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On January 1, 2015, Finland’s Information Security Code (2014/ 917, the “Code”) became effective. The Code introduces substantial revisions to Finland’s existing electronic communications legislation and consolidates several earlier laws into a single, unified text. Although many of these earlier laws remain unchanged, the Code includes extensive amendments in a number of areas.

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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.

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As reported in the Hunton Employment & Labor Perspectives Blog:

In Purple Communications, Inc., a divided National Labor Relations Board (“NLRB”) held that employees have the right to use their employers’ email systems for statutorily protected communications, including self-organization and other terms and conditions of employment, during non-working time. In making this determination, the NLRB reversed its divided 2007 decision in Register Guard, which held that employees have no statutory right to use their employer’s email systems for Section 7 purposes.

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On September 30, 2014, California Governor Jerry Brown announced the recent signings of several bills that provide increased privacy protections to California residents. The newly-signed bills are aimed at protecting student privacy, increasing consumer protection in the wake of a data breach, and expanding the scope of California’s invasion of privacy and revenge porn laws. Unless otherwise noted, the laws will take effect on January 1, 2015.

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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.

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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.

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On March 28, 2014, the 87th Conference of the German Data Protection Commissioners concluded in Hamburg. This biannual conference provides a private forum for the 17 German state data protection authorities (“DPAs”) and the Federal Commissioner for Data Protection and Freedom of Information, Andrea Voßhoff, to share their views on current issues, discuss relevant cases and adopt Resolutions aimed at harmonizing how data protection law is applied across Germany.

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Join us in New York City on May 19-20, 2014, for the Privacy, Policy & Technology Summit – A High Level Briefing for Today’s Top Privacy Executives. Lisa Sotto, partner and head of the Global Privacy and Cybersecurity practice at Hunton & Williams LLP will be a featured speaker at the session on “Cybersecurity: Insider Tips for Proactively Protecting Your Company and Its Data While Reducing Downstream Regulatory and Litigation Exposure.”

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On December 16, 2013, the French Data Protection Authority (“CNIL”) released a set of practical FAQs (plus technical tools and relevant source code) providing guidance on how to obtain consent for the use of cookies and similar technologies in compliance with EU and French data protection requirements (the “CNIL’s Guidance”). Article 5.3 of the revised e-Privacy Directive 2002/58/EC imposes an obligation to obtain prior consent before placing or accessing cookies and similar technologies on web users’ devices. Article 32-II of the French Data Protection Act transposes this obligation into French law.

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On October 22, 2013, the Federal Trade Commission announced a proposed settlement with Aaron’s, Inc. (“Aaron’s”) stemming from allegations that it knowingly assisted its franchisees in spying on consumers. Specifically, the FTC alleged that Aaron’s facilitated its franchisees’ installation and use of software on computers rented to consumers that surreptitiously tracked consumers’ locations, took photographs of consumers in their homes, and recorded consumers’ keystrokes in order to capture login credentials for email, financial and social media accounts. The FTC had previously settled similar allegations against Aaron’s and several other companies.

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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.

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On September 5, 2013, Pew Research Center released a report detailing the results of a new survey that questioned 792 Internet and smartphone users in the United States about their desire for anonymity and issues they have faced regarding privacy and security online. The report indicates that although most Internet users may wish to be anonymous online, they don’t believe complete anonymity is possible.

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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.

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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.

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On July 26, 2013, the Federal Trade Commission announced updates to its frequently asked questions regarding the Children’s Online Privacy Protection Act of 1998 (“COPPA”). The updated FAQs, which have replaced the June 2013 version on the FTC’s Business Center website, provide additional information in the sections addressing websites and online services directed to children and disclosure of information to third parties.
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On June 28, 2013, the Swiss Federal Data Protection and Information Commissioner (“FDPIC”) issued its 20th annual Report of Activities (the “Report”), highlighting the FDPIC’s main activities during the period from April 2012 to March 2013. The Report is available in French and in German, and the FDPIC also has prepared a summary of the Report in English.

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On July 2, 2013, the Indian government released its ambitious National Cyber Security Policy 2013. The development of the policy was prompted by a variety of factors, including the growth of India’s information technology industry, an increasing number of cyber attacks and the country’s “ambitious plans for rapid social transformation.” The policy sets forth 14 diverse objectives that range from enhancing the protection of India’s critical infrastructure, to assisting the investigation and prosecution of cyber crime, to developing 500,000 skilled cybersecurity professionals over the next five years.

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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.

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The UK Information Commissioner’s Office (“ICO”) has published guidance on the application of the Data Protection Act 1998 (“DPA”) to social networking sites and online forums. The guidance emphasizes that organizations and individuals that process data for non-personal purposes must comply with DPA requirements in their use of social networking sites and online forums just as they would in any other context.

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On May 31, 2013, the Council of the European Union’s Justice and Home Affairs released a draft compromise text in response to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”). This compromise text narrows the scope of the Proposed Regulation and seeks to move from a detailed, prescriptive approach toward a risk-based framework.

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On May 20, 2013, the Estonian Data Protection Inspectorate issued its Annual Report 2012 (the “Report,” summary available in English). The number of inquiries, complaints and supervision proceedings have remained the same over the last few years. The main topics of complaints include employment relations, CCTV, electronic direct marketing and social media. The Inspectorate stated that its primary goal is to stop violations of the law, not to impose sanctions. According to the Report, the Inspectorate issued orders regarding compliance in 48 cases and imposed fines in 39 cases.

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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.

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On April 2, 2013, the Securities and Exchange Commission issued a report regarding the investigation of a prominent public company and its CEO over disclosures made on the CEO’s personal social media page. The Commission did not bring enforcement charges in this case, but the report set forth the Commission’s view that, under certain circumstances, issuer-sponsored social media can be a permissible channel of dissemination of information under Regulation FD.

Adopted in 2000, Regulation FD generally prohibits public companies and personnel acting on their behalf from ...

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On February 12, 2013, the UK Information Commissioner’s Office published a further analysis of the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”). This latest analysis supplements the initial analysis paper on the Proposed Regulation published on February 27, 2012. Although the general views expressed in its initial paper stand, the ICO has now provided greater detail regarding its views of the substantive provisions of the Proposed Regulation.

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On March 14, 2013, the 85th Conference of the German Data Protection Commissioners concluded in Bremerhaven. This biannual conference provides a private forum for the 16 German state data protection authorities (“DPAs”) and the Federal Commissioner for Data Protection and Freedom of Information, Peter Schaar, to share their views on current issues, discuss relevant cases and adopt Resolutions aimed at harmonizing how data protection law is applied across Germany.

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On March 7, 2013, the UK Information Commissioner’s Office (“ICO”) published guidance (the “Guidance”) on Bring Your Own Device (“BYOD”) to explain to data controllers “what they need to consider when permitting the use of personal devices to process personal data for which they are responsible.” BYOD refers to the use of individuals’ personal devices to access and store corporate information.

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On February 7, 2013, the European Commission, together with the High Representative of the Union for Foreign Affairs and Security Policy, launched their cybersecurity strategy for the European Union (“Strategy”). As part of this Strategy, the European Commission also proposed a draft directive on measures to ensure a common level of network and information security (“NIS”) across the EU (the “Directive”).

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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.

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On January 23, 2012, the Federal Financial Institutions Examination Council (“FFIEC”) released proposed guidance, Social Media: Consumer Compliance Risk Management Guidance (the “Guidance”) to address how federal consumer protection laws may apply to the social media activities of financial institutions that are supervised by the Consumer Financial Protection Bureau. Comments on the guidance must be submitted within 60 days (before March 25, 2013). After consideration of the public comments, and once the guidance is finalized, financial institutions will be expected to “use the guidance in their efforts to ensure that their risk management practices adequately address the consumer compliance and legal risks, as well as related risks, such as reputation and operational risks, raised by activities conducted via social media.” Rather than imposing additional obligations on financial institutions, the Guidance is intended to help financial institutions comply with existing federal requirements as they apply to the use of social media platforms.

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Reporting from Washington, D.C., Hunton & Williams associate Andrew Walsh writes:

Data embedded in photos can make a picture worth far more than a thousand words. To provide an example rich in irony, a well-known figure in Internet security who was wanted for police questioning recently inadvertently pinpointed his location for the authorities with an online posting of a photo containing Exchangeable Image File (“EXIF”) data. EXIF data is saved with JPG files on digital cameras and, if the camera has GPS, the EXIF data may include geolocation information such as the date, time, longitude, latitude and altitude of the photo.

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