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Social Links is our ongoing series here at Socially Aware that rounds up current developments at the intersection of social media, policy, research, and the law.

Embedding social media posts can be considered copyright infringement…but is it?

A Manhattan federal judge ruled in August 2021 that the practice of embedding social media posts on third-party

The Supreme Court has issued its much-anticipated ruling in Facebook v. Duguid, impacting many pending Telephone Consumer Protection Act (TCPA) cases nationwide and providing guidance to the many businesses that engage in calling and texting campaigns. The TCPA generally requires an individual’s prior consent to use an automatic telephone dialing system (an “autodialer”) to

Reports of social media scams that have caused users to lose money had tripled by the end of 2020’s second quarter, resulting in the loss of $117 million during the first two quarters of this year alone. Romance scams and supposed economic relief offers are a large part of the problem, but e-commerce scams are

Expressing concern about the spread of disinformation related to COVID-19, Federal Trade Commissioner Rohit Chopra said Congress may need “to reassess the special privileges afforded to tech platforms, especially given their vast power to curate and present content in ways that may manipulate users.” His words implicate one of our favorite topics here at Socially

In the wake of the COVID-19 pandemic, children are spending more of their lives in the digital realm, both for education and entertainment purposes—but that doesn’t mean the Federal Trade Commission (FTC) is cutting online operators slack for not complying with the Children’s Online Privacy Protection Act (COPPA). Last week, the FTC levied a $4 million penalty against HyperBeard, Inc., a popular mobile app developer, to settle allegations that HyperBeard integrated third-party ad networks into its child-directed apps in violation of COPPA.(Due to HyperBeard’s inability to pay the full amount, the $4 million penalty will be suspended upon payment of $150,000 by HyperBeard).

The complaint is notable in that the FTC did not allege that HyperBeard itself collected any personal information from children—rather, the alleged violations centered around the company enabling third parties to collect personal information from children through its service. The fine serves as a warning to online operators that they are strictly responsible for their third-party integrations, even if they themselves do not collect personal information from children. Andrew Smith, Director of the FTC’s Bureau of Consumer Protection, emphasized, “If your app or website is directed to kids, you’ve got to make sure parents are in the loop before you collect children’s personal information. This includes allowing someone else, such as an ad network, to collect persistent identifiers, like advertising IDs or cookies, in order to serve behavioral advertising.”
Continue Reading It’s 10 p.m. Do You Know What Your Third-Party Integrations Are Doing?

A new report from the U.S. Copyright Office suggests that Congress should fine-tune the Digital Millennium Copyright Act (DMCA) to, among other things, alter the takedown system that platforms must adhere to in order to be eligible for the safe harbor the DMCA affords to online platforms when third parties post infringing content. Read about

The Federal Trade Commission (FTC) appears to be using its ongoing review of current rules and guides to revisit its approach to driving home the message that the relationship between a social media “influencer” and the brand he or she is endorsing must be disclosed. As we have described previously, the FTC has interpreted its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Endorsement Guides”) to require that online advertisements — like all other advertising — clearly and conspicuously disclose material connections between endorsers (i.e., influencers) and the brands they promote because such connections may affect the credibility of the endorsement. And, in recent years, the FTC has — through enforcement actions, press releases, guidance, closing letters, and letters sent directly to endorsers (including prominent public figures) — made clear its belief that: (1) appropriate disclosures by influencers are essential to protecting consumers; and (2) in too many instances, such disclosures are absent from celebrity or other influencer endorsements.

Now, in connection with a request for comments on the Endorsement Guides, FTC Commissioner Rohit Chopra has issued a scathing statement calling on the FTC to “take bold steps to safeguard our digital economy from lies, distortions, and disinformation.” In this regard, Commissioner Chopra suggests that the FTC’s efforts to date have not been effective in “deterring misconduct in the marketplace” relating to inauthentic and fake reviews, and that, in particular, elements of the Endorsement Guides should be codified as formal rules so that violators can be liable for civil penalties and damages under the FTC Act.

Also of note is that Commissioner Chopra has asserted that the FTC should refocus its efforts on advertisers themselves, and not the influencers that promote their brands.  According to the Commissioner, “when companies launder advertising by paying someone for a seemingly authentic endorsement or review, this is illegal payola,” and “companies paying for undisclosed influencer endorsements and reviews are not [being] held fully accountable for this illegal activity.” Seeking to aggressively penalize advertisers themselves would be a shift in emphasis for the FTC, as its recent efforts to combat inadequate disclosures in influencer advertising have focused on influencers. For example, the FTC recently produced a brochure detailing the responsibility of influencers “to make [required] disclosures, to be familiar with the Endorsement Guides, and to comply with laws against deceptive ads.” The FTC also brought an enforcement action against influencers, and foreshadowed that more enforcement will happen in the future.


Continue Reading Fake News & Paid Reviews: FTC Seeks Comments on its Endorsement Guides

The Federal Trade Commission is trying yet another approach to convey the message that the relationship between a social media “influencer” and the brand he or she is endorsing must be disclosed. This new guidance from FTC staff takes the form of a brochure (with accompanying video) aimed directly at influencers. It bluntly states that influencers “must comply with the law” when working with brands to recommend or endorse products and provides “tips on when and how to make good disclosures.”

The brochure is a distillation of the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Endorsement Guides”), as well as subsequent FAQs, guidance, and related materials. Arising out of the prohibition under Section 5 of the FTC Act on unfair and deceptive acts or practices, the Endorsement Guides require advertisers and endorsers (i.e., influencers) to, among other things, clearly and conspicuously disclose when the advertiser has provided an endorser with any type of compensation in exchange for an endorsement. This type of arrangement is what the Endorsement Guides describe as a “material connection,” meaning “a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience).” The new brochure delivers this message as follows: “Telling your followers about these kinds of relationships [i.e., material connections] is important because it helps keep your recommendations honest and truthful, and it allows people to weigh the value of your endorsements.”
Continue Reading Influencing the Influencers: FTC Staff Release “Disclosures 101” Guidance for Online Endorsers

In a move likely welcomed by publishers seeking a solution to honoring “sale” opt-outs in the interest-based advertising space, the Interactive Advertising Bureau last week released the IAB California Consumer Privacy Act Compliance Framework for Publishers and Technology Companies. The IAB is the trade association for the digital media and marketing industries, and it developed the Framework to help publishers (i.e., websites) and the online advertising supply chain comply with the CCPA—and particularly with the CCPA’s right to consumer opt-outs of “sales” of personal information.

The Framework sets up a system in which a consumer opt-out has the result that the parties in the digital advertising supply chain become limited service providers to the publisher, such that there is no longer a “sale” with respect to those consumers’ personal information. A limited service provider may still serve ads on behalf of the publisher, but those ads cannot involve any “sale” of personal information under the CCPA.

IAB is accepting public comments to the Framework until Tuesday, November 5, 2019. Comments should be emailed to privacy@iab.com. The draft Framework and draft technical specifications for the Framework can be accessed here.
Continue Reading We’re Sorry, Your Service (Provider) Is Limited: The IAB CCPA Compliance Framework