Schroder Brooks Law Firm, PLC

by Ashley Brooks

The Ad Matter

The Ad Matter by Ashley Brooks: April Edition

April may bring Spring Break for some, Spring showers for most, but it’s bringing Ad Law headlines for all.

Whether you are a privacy geek or you monitor the wise words of the FTC, there’s something for everyone in the very first installment of The Ad Matter, a monthly gathering of headlines and other news affecting the business of advertising and marketing.

Washington(s) May be the Next California.   The State Senate of Washington passed the Washington Privacy Act (“WPA”) by a vote of 46-1. The WPA would provide similar rights to Washingtonians as the California equivalent (the California Consumer Privacy Act “CCPA”) and the General Data Privacy Rule (“GDPR”), including the right to learn what data is collected and whether it’s sold to third parties.  Further, consumers could prevent their data from being used for ad targeting based on the data collected across non-affiliated third-party sites and services.

Among others, the WPA would require that companies provide clear privacy notices and would allow consumers to correct inaccurate data (or in some cases, delete it) with the right to withdraw previous consent for the use of data. If approved this law will become effective in 2021.

Another bill, across the country in Washington D.C, called The Privacy Bill of Rights Act, was also introduced by Senator Markley (D), Massachusetts. This bill would limit or prohibit  companies from using an individual’s personal data, require companies to secure and protect all consumer data they obtain, and only collect the data needed from consumers to provide the services requested by the consumer.  This bill would also set up a centralized FTC website to inform consumers of their rights.

Why it Matters: Washington State could become the second state to regulate consumer privacy. Other states to look out for include Hawaii, Maryland, Massachusetts, New Mexico and Rhode Island where other legislation is pending.  While states struggle on how to deal with consumer privacy, the advertising industry is pushing hard for a unified, national approach to avoid the quagmire that would result with 50 separate state laws.  Senator Markley’s bill may indicate a more focused government approach to this issue.

COPPA Targets Teens. The Children’s Online Privacy Protection Act, currently regulates websites and services targeting children under 13. A new bill, called the Digital Marketing Bill of Rights for Minors, was introduced in a bipartisan push to prohibit behaviorally targeted ads directed at individuals between the ages of 13 and 16.  The bill would require that companies obtain express consent from such individuals before collecting personal or location data. It would also provide a mechanism by which parents and children could delete their information and establish a new division at the FTC called the Youth Privacy and Marketing Division. One other highlight, the bill would prohibit the sale of internet connected devices unless such sellers have “robust cybersecurity standards”.  

Why it Matters:  Congress has tried in the past to expand COPPA with no luck. Despite its bipartisan nature, this is still a wait-and-see moment for COPPA.   

Another Export from the EU: The EU Privacy Directive. If you thought GDPR was a headache, take a look at the newest EU law – the EU Copyright Directive – complete with the ominous sounding Article 17 (previously known as the even more ominous sounding Article 13).    Article 17 of the Directive will make tech firms, content websites, and streaming liable for copyright breaches.

Rather than the uploader of the content being held responsible for copyright infringement, this law puts the onus on the providers to ensure that the content is in fact licensed.  This means that in order to host any content to begin with, they will need to acquire licenses from rights holders. The result is that streaming services and other providers that show content will now have to build and apply stricter filtering mechanisms in order to ensure that rights have been obtained.

A total of 19 European Union countries voted to approve the legislation. Italy, Luxembourg, Netherlands, Poland, Finland and Sweden voted against it.  

Some organizations lamented the vote while others, like the European news publishers, were thrilled.

Why It Matters.  Yes, this is an EU regulation but it will surely effect US publishers and advertisers. Keep an eye on these developments and how international and US companies react and prepare (or not) for the inevitable influence of this regulation.

And Finally… What’s the FTC Thinking?   In an address to the Association of National Advertisers Advertising Law and Public Policy Conference in March, Chairman of the FTC, Joseph Simons set out some of the priorities of the FTC this year.  Takeaways include the following:

Fraud and Deception.   The FTC has traditionally focused on consumer protection and fraud regarding products of no value. There is renewed focus on deception claims made by legitimate, established products.

Remedies. They are rethinking remedies in order to really focus on enforcement – not just as a deterrent to bad actors but to provide relief to consumers who have been harmed.

Privacy Concerns. In a world where “smart” refers to how much data a device can collect, it’s important for consumers to be smart too. The FTC is encouraging truth, transparency, and a focus on consumer outcomes, when it comes to data collection and privacy.

Addie Johnson