Interactive Counsel

Arent Fox's interactive media law blog - latest news and trends in advertising, data security & privacy, and IP.

Interactive Counsel

Blog Posts by Anthony V. Lupo

Privacy & Security, GDPR
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Read Here to Update: Privacy Policies, Connectivity, and Consent in the Age of the GDPR

Thinking about updating your privacy policy? Consider how to get consumer buy-in as part of the process. Your organization may be in the process of revamping its privacy practices, and as a result its external privacy policy, to keep up with the European General Data Protection Regulation (GDPR) and Federal Trade Commission (FTC) rules. This is good practice, but your organization should also consider how to publish the revised policies externally and internally, and whether consumer consent is appropriate.

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Advertising, Social Media, User-Generated Content
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Instagram Signals to #Influencers That There’s a #NewSheriff in Town

TLDR

Instagram has a message for social media Influencers: the Wild West is coming to an end. The popular photo-sharing platform is rolling out a new tool that will make it easier to tag and track paid commercial content. The tool offers a potential replacement for the much loathed “#ad” disclosure, but it also signals a coming crackdown on Influencer posts.

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Privacy & Security
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Vizio Smart TVs Fail FTC Privacy Test

What’s the News?

The Federal Trade Commission is asking “who’s watching who?” in a recent settlement with Vizio over the consumer electronics brand’s smart TVs. Vizio’s settlement with the FTC and the New Jersey Attorney General comes in at $2.2 million after a complaint that Vizio tracked consumer viewing data on 11 million smart TVs since 2014 without their knowledge and sold it to third parties. Vizio must also delete all data collected up until March 2016, disclose its data practices, and improve its privacy policies.

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Payment Processing, Electronic Fund Transfers & Mobile Payments, Privacy & Security
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New Version of Payment Card Information Standards Targets Recent Breach Issues

What’s the News?

Following recent updates, merchants and retailers will soon become subject to the updated Payment Card Information Data Security Standard (PCI DSS), the security standard that organizations need to follow if they handle credit and debit cards from major card companies, such as Visa, MasterCard and American Express. This round of changes will be known as version 3.2 of PCI DSS, and include significant guidance and updates on hot topics such as encryption and strong credentials. Compliance with the changes is important because companies that are subject to PCI DSS but fail to comply face exclusion from processing credit card payments and/or hefty fines. Sometimes, noncompliance could mean leaving open the doors to your cardholder data environment, thereby allowing hackers and malicious entities to enter.
 

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Advertising, Media & Entertainment, Gaming & Interactive Media, Privacy & Security
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It's All A Game: Advertising, IP, and Privacy in Today’s Interactive Media

Interactive gaming, innovative app development, mobile expansion, new dimensions in AR and VR, and strides in your company's marketing strategy can press the boundaries of the current legal landscape. “Level Up” with Arent Fox as we discuss the legal issues in an intimate discussion that will address three areas that have the most play: advertising, intellectual property, and privacy interests. 

The panelists include:

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Privacy & Security
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Delivery By Drone? Maybe When Pigs Fly, Says FAA

What’s the News?

The enactment of new Federal Aviation Administration (FAA) regulations governing unmanned aircraft systems – or “drones” – has companies and consumers alike dreaming of the stuff of science fiction, but if the new regulations are any indication, the FAA is in no rush to see those dreams become reality. While the drone regulations permit use of drones for a variety of commercial purposes, the FAA declined to clear the way for package delivery by drone.

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Privacy & Security, Health Privacy & Security
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Beware of Ransomware, Or the Bad Guys Could Hold Your Devices and Data Hostage

What’s New?

Ransomware is old news – it has been around at least since 1989 – but it has only now started to attract widespread attention. Ransomware is a type of malicious software (or malware, for short) that blocks access to the infected device, to some or all of the information stored in the device, or even worse, to files in the device’s network. To unlock either the device or the data, the responsible cybercriminals require the victim to pay a ransom. Ransomware is typically enabled when a victim clicks on malicious links in an email or online.
 
Internet security software company, Kaspersky Lab, recently released a report on the rise of ransomware between 2014 and 2016. The findings are troublesome, some of which are as follows:

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Privacy & Security, GDPR
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What Global Fashion Companies Need to Know About the GDPR If They Collect EU Personal Data

What’s New? (The GDPR.)

Fashion and luxury goods companies need to take heed of yet another data protection regulation. This one could substantially impact them if they collect, process, or transfer EU individuals’ personal data, or plan to do so at some point soon. Specifically, the General Data Protection Regulation (GDPR) is the EU’s new data protection law, recently and finally entered into law. It replaces the old EU data protection regime established by the Data Protection Directive (95/46/EC). The GDPR lays out requirements for organizations that process EU residents’ data and generally provides people increased control over their personal data.

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Advertising, Mobile Marketing, Privacy & Security
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Triple Threat: Chinese Ad Company’s Malware Raises Ad Fraud, Cybersecurity, and Privacy Concerns

What’s New?

Recent reports indicate that advertising fraud is not only increasing but is now being run by groups alongside otherwise legitimate advertising businesses. 
 
Cybersecurity company Check Point recently released a report finding that HummingBad—a known malware that takes over Android devices, generates fraudulent advertising revenue, and installs apps on the infected phones—was developed and is controlled by a group of cybercriminals within Yingmob, an otherwise legitimate advertising analytics business based in Beijing. 
 

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Advertising, E-Commerce, Privacy & Security
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EU Reg Would Ban Retail Companies From Using Geo-Tracking In Online Shopping

Under a proposed EU regulation, online retail companies in Europe may no longer be able to use geo-tracking in online shopping. The European Commission released a draft regulation on May 25, 2016 that proposes the removal of geo-blocking for online shopping, stating that it wants to ensure that consumers seeking to buy products and services in an EU country, be it online or in person, are not discriminated against in terms of access to prices, sales, or payment conditions.
 

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E-Commerce
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Hurry Up & Wait: DOJ Again Delays Long-Anticipated ADA Rules Governing Website Accessibility

In July 2010, the United States Department of Justice (DOJ) released an Advanced Notice of Proposed Rulemaking (ANPRM) that would explicitly include websites as “places of public accommodation” under the ADA, and sought public comment regarding proposed rules intended to ensure that websites will be fully accessible to individuals with a wide variety of disabilities. Since that time, owners and operators of e-commerce websites have been anxiously awaiting the promulgation of new rules governing website accessibility, only to see the DOJ repeatedly delay issuance. In September 2015, we published an alert warning retailers of the impending promulgation of the new rules, only to see the DOJ delay issuance until April 2016.

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Advertising, Promotions, Sweepstakes & Contests
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Walgreens Settles Pricing Dispute After New York’s Years Long Investigation

What’s the News?

Walgreens recently settled with the state of New York over allegations that the drug retail chain misled consumers with its pricing, including value and clearance prices. According to the New York attorney general’s office, an undercover investigation showed that Walgreens was overcharging customers compared to the prices displayed in print advertising and on-shelf tags. Walgreens agreed to pay $500,000 to settle the dispute and has agreed to review and correct the allegedly misleading pricing practices. This should serve as a reminder to retailers in all industries of the need to exercise care in product pricing, as this area has become a common target for regulators and the plaintiff’s bar.

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Advertising, E-Commerce
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Winds of Change: Court Grants Summary Judgment for Plaintiff in Website Accessibility ADA Claim

Last September, we published an alert warning retailers of a looming expansion in the reach of Title III of the Americans with Disabilities Act that would impose requirements on e-commerce websites to make themselves more accessible to users with a wide variety of disabilities. While the US Department of Justice has yet to promulgate regulations specifying those requirements, enforcement actions by DOJ and threatened class action lawsuits by a number of plaintiffs’ law firms all point towards the likelihood that retailers' websites will have to meet Level AA of the Web Content Accessibility Guidelines v. 2.0.

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Advertising, Promotions, Sweepstakes & Contests, Social Media
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FTC Targets Retailers Offering Tweets for Pay

Social media disclosures may cause heart palpitations for advertisers and copywriters, but the Federal Trade Commission isn’t backing down. A recent settlement involving Lord & Taylor provides another important reminder that the FTC is scrutinizing social media campaigns and that proper disclosures are required, even if you only have 140 characters to do it in.

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Payment Processing, Electronic Fund Transfers & Mobile Payments
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Costco Looks to Knock Out FACTA Receipt Class Action

What’s the News?

Costco Wholesale Corporation recently moved to dismiss a class action lawsuit alleging that the discount retailer printed more than the last five digits of a customer’s credit card number on her receipt, in violation of the Fair and Accurate Credit Transactions Act (FACTA). Costco argued in its motion that the document upon which the credit card number was printed – a longer document provided to the plaintiff by a customer service supervisor – was not actually a “point-of-sale” receipt within the meaning of FACTA, taking it outside the scope of the law. This case presents an interesting issue for companies as they seek to avoid costly and time-consuming litigation under FACTA.
 

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Advertising, Media & Entertainment
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Ninth Circuit Gives New Life to Grand Theft Auto Class Action

What the News?

In a recent opinion, the Ninth Circuit reversed the dismissal of a lawsuit against the developer of the highly-anticipated videogame Grand Theft Auto V. Two plaintiffs filed a putative class action, claiming that the game’s packaging made promises that the company did not keep. In particular, the plaintiffs asserted that the packaging suggested the game included an online, interactive component, when in fact this functionality was not available to users at the time the game was released. While the district court found that the plaintiffs had not properly stated a claim for relief in their complaint, the Ninth Circuit disagreed, stressing the plaintiff-friendly standard for a motion to dismiss for failure to state a claim. The case presents an interesting issue for advertising related to videogame capabilities.=

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E-Commerce, Payment Processing, Electronic Fund Transfers & Mobile Payments
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Amazon Fights Injunction in FTC Action Over In-App Billing Practices

Practical Guidance

  • In-app purchasing remains a priority for regulators.  
  • Companies with mobile apps should incorporate password protection and informative prompts to obtain informed consent from account owners for in-app purchases.

What the News?

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Advertising, Promotions, Sweepstakes & Contests
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Deal or No Deal? Class Action Alleges Macy’s Offered Misleading Sale Prices

What’s the News?

Macy’s, Inc. and subsidiary Bloomingdale’s, Inc. were recently served with a class action complaint alleging that the retail chains misled consumers with a “phantom pricing scheme” that inflated the savings available on items marked for sale. According to the complaint, the stores listed artificially high “regular” prices on “sale” items, increasing, by comparison, the savings that consumers believed they were receiving. This is the latest of several recent class action lawsuits attacking retail pricing strategies, and it serves as a reminder to retailers nationwide to be careful when using price comparisons.

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Advertising
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Is It or Isn’t It? FTC Issues Guidance to Companies on Native Advertising

The Federal Trade Commission recently issued its long-anticipated guidance on native advertising. While the policy statement and its related guidance are new, the FTC emphasized that it has been regulating native advertising under Section 5 of the FTC Act since 1967 and that this policy document and guidance is a summary of the principles that it has developed over the years. While the FTC has been regulating native advertisements for decades, the issuance of this guidance indicates that the FTC will be making regulation of native advertising a priority in 2016.
 
Native advertising – as defined by the FTC – is advertising that matches the design, style, and behavior of the digital media in which it is disseminated. The main problem with respect to native advertising arises when the content is formatted in a way that suggests or implies it is not an advertisement.

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Health Privacy & Security, Advertising
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Lumos Labs Settles With FTC Over Brain Training Program Claims

The Federal Trade Commission announced this week that Lumos Labs had agreed to settle false and deceptive advertising claims related to the company’s promotion of its “Lumosity” cognitive training programs (commonly referred to as “brain training”). Under the FTC’s Settlement Order, Lumos Labs will pay $2 million in consumer redress and notify its on-line subscribers of the FTC settlement, as well as provide them with directions on how to cancel their Lumosity auto-renewal subscriptions.

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Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.