Facebook and Privacy: cases, reports and actions in Europe

Facebook and Privacy: cases, reports and actions in Europe

A list of European enforcement action, official legislative (Parliamentary) reports, and cases concerning Facebook with respect to data protection and privacy. This is a work in progress, last updated November 2018.

Data Protection Commissioner (Ireland) v Facebook Ireland Limited, Maximillian Schrems [Case C-311/18]

  • Jurisdiction: European Union, Ireland
  • Status: Case still in progress
  • Authority:  Court of Justice of the European Union
  • Keywords: EU Data Protection Directive (95/46/EC); EU/US Privacy Shield; Fundamental Rights

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Noteworthy interview on new social media advertising regulations

Noteworthy interview on new social media advertising regulations

Earlier this autumn, several celebrities were investigated by UK regulators for not labelling social media posts as “advertisements”. Given that so-called influencers can potentially sway the shopping habits of millions, the Advertising Standards Association published An Influencer’s Guide to making clear that ads are ads, to help celebs and bloggers avoid misleading consumers. But what does this guide really mean in practical terms? To better understand the world of influencers and online advertising, I’ve interviewed Nicole Ocran-Hegarty: journalist, style blogger, and Influencer Strategy Manager at Disney.

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Kelsey:  Nicole, you and I first met online about 15 years ago on the blogging platform Livejournal. Since then, we both – coincidentally – moved from the United States to London, where we finally met in real life!

Can you tell me a bit about your professional background in journalism, and what inspired you to begin your personal fashion blog, The Noteworthy?

Nicole:  I honestly cannot get over how the Internet brings people together. I remember typing away and commenting on your LiveJournal and messaging you from my childhood bedroom in Annandale, Virginia. You were constantly here there and everywhere and I was so jealous of that. Anyway, I’m already off topic!

My career in journalism started when I was 19 or 20 and a student at George Mason University. I had just started editing the Style pages of my university’s student newspaper, the Fourth Estate. It was there that I really honed my craft, my love of writing, editing of interviewing. In my junior year I became editor-in-chief of the paper: I lived and breathed the paper, and didn’t want to do anything else but be in the Student Media office. I also was interning at the The Washington Post’s free daily paper, Express.

By the time I graduated from George Mason, I started another internship at the non-profit Student Press Law Center, fighting for First Amendment rights for students across America. At the same time I applied to City University in London, and went with their journalism masters programme! It was the best decision I ever made.

In London, I got my first job in entertainment journalism at Entertainment News, and I’ve since written for the Metro, The Sun and Refinery29 UK! I decided to start The Noteworthy while I working in a job where I wasn’t really able to express myself through personal writing. When I got made redundant, The Noteworthy became a real outlet for me, as I was able to showcase my love of fashion, where I hadn’t been able to before.

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In addition to writing about style, fashion and beauty, Nicole routinely explores topics about feminism, politics, Black women, and pop and celebrity culture. Recently, she explained why she won’t shop at Topshop anymore in light of the Philip Green sexual harassment scandal.

Under the new Influencer’s Guide, bloggers only need to disclose something as an advert if: (1) they’ve been “paid” in some way, which could include receiving a freebie, AND (2) they are under some form of editorial “control” by the brand. What are your thoughts on this? Do you think most people are aware of the “control” aspect? Do you think it matters?

I have so many thoughts on this! Firstly, I think disclosure is incredibly important. We’re in an age now where not only are audiences incredibly savvy but they’re also somewhat skeptical. It’s so important to be completely honest about their gifted items, paid campaigns, free trips and so on. Especially in an age where we are just feeling terrible and comparing ourselves to everything we see online.

I’m not sure how much the general public knows how much control a brand has over content. Often it can be very clear and sometimes it doesn’t look authentic to that influencer, so it can be a bit obvious. Other times, the brand might gift the influencer a product without any expectation for them to post, so it ends up just fitting in naturally.

The control aspect is key. If a brand gifts you an item, but then expects you to post on a certain day or see content before it goes live – then this is sponsored content. Even if you haven’t been paid for it, and that must be made clear to your audience. The guidelines are in place to protect consumers, which I appreciate.

You mention “gifting” by brands. Is the distinction between “paying” and “gifting” a product an important one to make? If so, why?

To me, yes. The two mean completely different things in my mind – when something is paid, I think of brand control, I think of money exchanging hands, and contracts signed. Gifted items and freebies although have monetary value, should be made clear in a different way. I do prefer to know that an influencer hasn’t purchased that product with their own money, for example, or didn’t pay for that holiday.

Something I hear often from colleagues and friends is that advertising on social media is “obvious enough,” and that consumers don’t need the #ad hashtag or similar disclaimers. As a general rule, do you think bloggers and influencers are actually clear and transparent enough? Is there sufficient self-regulation? Or were the regulators right to step in with new rules?

There are definitely #ads and #sponcon that are extremely obvious with their advertising messaging and aren’t being declared as such – but I don’t think that should matter. The regulators are absolutely right to step in with new rules and best practice. I also think there’s been a real effort from bloggers and influencers to declare ads, but there are still a select few (including celebrities and reality stars) getting away with not doing it.

What do you think some of the biggest concerns influencers and bloggers have with making it clear that adverts are indeed adverts? Aesthetics? Independence? Credibility?

I think fatigue? I think there are a lot of consumers who feel like they are constantly being advertised to, but we spend so much time on our phones, our laptops and social media now that advertising is just becoming more obvious. It’s always been there in TV, radio and print!

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But at least for me, a lot of the bloggers that I followed before they were known as influencers, I followed them because I liked them as people (or their online personas), so I understand it can be jarring to see an ad thrown in with their regular content. But I enjoy supporting them still because I feel like I’ve been on that journey with them.

If you could speak to the advertising regulators directly and tell them one key thing about this issue, what would it be?

I do think a lot of the declaration can feel excessive, which does cause people to have to say “This isn’t an ad, I just love X”. My main issue has been the distinction between a gifted item as payment, especially as there can be a lot of influencers who receive gifted product and declaring it as an ‘ad’ or as ‘sponsored’ to me as a consumer, means something else entirely.

Finally, what have been the most challenging and rewarding things about running your own fashion and lifestyle blog thus far? What is something you hope to accomplish or participate in over the next few months?

The most challenging thing is time! I still work full-time in talent/influencer strategy, so that is my 9-5 job. Having to run my blog during evenings and weekends can be pretty tiring but also I just wish I could do more!

The most rewarding by miles and miles are the friendships I’ve made through blogging, that is what I cherish the most and is what keeps me coming back to create more content! Being able to speak to people all over the world is just a joy.

I hope to be able to get my life in order and continue to post consistently! Anything I can do to write more would be ideal, so hopefully some more freelance opportunities, or even speaking opportunities as well!

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Many thanks to Nicole for sharing her time, expertise and insight with me for this interview! You can follow her at The-Noteworthy.com, on Instagram at @NicoleOcran, and on Twitter @NicoleOcran

From stealing to kneeling, what do NFL player contracts say about “bad” behavior?

From stealing to kneeling, what do NFL player contracts say about “bad” behavior?

Three times each year, two professional American football teams journey across the pond to play against each other in the NFL London Games. This weekend however, four players from the Jacksonville Jaguars made headlines for something they did off the field. They were arrested under suspicion of fraud by false representation for attempting to leave a nightclub without paying the £50,000 ($64,000) bar tab.

According to ProFootball Talk, expensive bottles of champagne and vodka were sent to the players’ table. They thought someone else was paying, and were surprised to learn that they were expected to pay. The bill was settled hours after the arrest, and the players were released with no further action taken by police. “There was definitely a misunderstanding,” said Barry Church, one of the players arrested. “We handled it as a private matter within the team, and we’ll just go from there.”

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Despite their fame and talent, at the end of the day, professional athletes are capable of making mistakes just like the rest of us. But unlike the rest of us, sports stars are often contractually obligated to maintain a positive reputation.

The NFL has had a formal policy addressing off-field conduct since 1997. The current 2014 Personal Conduct Policy prohibits physical violence, illegal possession of a gun or drugs, and cruelty to animals – remember Michael Vick and his dogfightingBut the policy also prohibits anything “that undermines or puts at risk the integrity of and public confidence in the NFL.” Even if a player’s conduct does not result in a criminal conviction, the NFL can impose fines, suspension, or even banishment from the league.

In addition to the NFL Policy, individual player contracts also contain “morality clauses.” Also known as a “moral turpitude clause” or “bad boy clause”, this permits an employer to end the contractual relationship if the employee’s conduct breaches the moral expectations laid out in the employment or endorsement agreement. For my overview of the history and use of morality clauses more generally, see Morality Clauses in Talent Contracts.

The 2012 contract between Arian Foster (“Player”) and the Houston Texans (“Club”) is available online thanks to a (fascinating) IPO filing with the Securities and Exchange Commission. Clauses regarding Foster’s behaviour and conduct included:

  • Player agrees to give his best efforts and loyalty to the Club, and to conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game. 
  • If at any time, in the sole judgement of Club, Player has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club, then Club may terminate this contract.
  • Player recognizes the detriment to the League and professional football that would result from impairment of public confidence in the integrity and good character of NFL players.

“Meaning Transference” and marketing magic

You might be wondering why a football team should care about the off-field behaviour of its players. As long as the guy can run the ball or block a tackle, who cares if he’s arrested for trying to skip out on a bar tab. Right? Wrong.

Consider for a moment the amount of money teams and companies invest in employment contracts and endorsement agreements. By way of example, Russell Wilson earned $2 million during his first three seasons with the Seattle Seahawks. In 2015, the Hawks rewarded their quarterback with a renewed contract worth nearly $90 million. Wilson also gets $10 million a year from his deals with Bose, Nike, and Alaska Airlines. On the other side of the country, the New York Giants’ wide receiver Odell Beckham Jr is earning about $10 million over four years. But the real kicker is that Nike recently signed him for the biggest shoe endorsement ever, worth $25 million over five years.

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“Seattle’s hometown airline” Alaska Airlines “couldn’t be more proud of Seattle’s football hero, Russell Wilson.” Thanks to Wilson’s impressive skill and wholesome image, they even made him their CFO! Chief Football Officer, that is.

Meaning Transference is a social theory which posits consumers “transfer” the perceived ideals, credibility and reputation of celebrities to the associated product or service being sold (Grant McCracken). Because negative perceptions can also transfer, a company will want to distance themselves if a celebrity behaves badly. Essentially, morality clauses protect the team or company’s public image from the athlete’s potential scandals. In practice, this could mean suspending or terminating the contract, which could cost the athlete thousands – or potentially millions – of dollars.

The crux of any morality clause is how the “bad behaviour” is defined. Does a player kneeling during the American national anthem adversely affect the image of the NFL?

Given today’s heated political climate, it’s no surprise that professional athletes are increasingly voicing – or otherwise demonstrating – their opinions on social issues. In 2016, Colin Kaepernick of the San Fransisco 49’s started the trend of protesting police brutality and racial inequality, by kneeling during the national anthem at the start of games. Other players soon joined in, much to the ire of many football fans and prominent figures, including President Trump. That same year, Kaepernick was deemed the most hated player in the NFL.

Speaking to The Washington Postconstitutional law Professor Fred Smith Jr. described the anthem debate as a “clash of values which has become a very fraught issue in the American political imagination.” The NFL reacted to the situation by announcing a new policy in May of this year: players must either stand for the national anthem on the field or wait in the locker room. The policy was then shut down by the NFL’s labour union (NFLPA) only two months later.

As the NFL and the NFLPA continue to negotiate, “no new rules relating to the anthem will be issued or enforced”. However, introduction of the new rules in the first place demonstrates that the NFL is at least attempting to mitigate the perception that it is an unpatriotic organisation. It could be argued that from the NFL’s perspective, it is the result of the public’s perception that matters, and not the conduct itself. 

In spite of the furor and uproar, Nike made a risky decision in September to feature Colin Kaepernick in an advertising campaign. Despite some backlash and boycotts, the move paid off handsomely overall: Nike received valuable free publicity, and online sales and stock price skyrocketed. In this way, Kaepernick’s kneeling is both detrimental to one organisation (the NFL), as well as highly profitable for another (Nike).

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Nike released a controversial commercial featuring Colin Kaepernick, which hints at the embroilment over NFL players kneeling during the American national anthem.

Ultimately, it is critical to understand that morality clauses attempt to regulate something that is continually in flux. Opponents of morality clauses worry that the definition of what constitutes “immoral” or damaging activity could be too broad and subject to abuse by the employer. Smart sports stars and their lawyers will therefore do well to ensure that morality clauses are carefully negotiated and written precisely in order to protect their position – and their paycheques.

UK regulator to investigate social media influencers

UK regulator to investigate social media influencers

A number of celebrities and social media stars are being investigated by the Competition and Markets Authority, which says it has concerns that some influencers are failing to disclose that they are being paid for their endorsements.

In the early days of social media, Instagram and Facebook were seen as ways to connect with those closest to us, and to provide an insight into our private lives. Today however, models and celebrities can make thousands (if not hundreds of thousands) of dollars with every photo they post, simply by featuring a product in their image. This nuanced form of targeted marketing deliberately blurs the line between “advertising” and “personal” sharing, and it’s big business. According to the Financial Times, Instagram influencers earned more than $1bn (£770m) in 2017.

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Pictured here is Chiara Ferragni, Italian fashion writer, influencer, businesswoman; and the first-ever blogger to be the focus of a Harvard Business School case study. Is this post of hers an advertisement, or is she just sharing the love?

Under American law, companies who work with influencers (defined as “key individuals with significant social media followings”) to promote products, services, or brands must follow certain rules, many of which are set out in Title XVI (Commercial Practices) of the Code of Federal Regulations. In particular, when there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement, such connection must be fully disclosed. (16 C.F.R. §§ 255.0-255.5).

In practice, this means that when a company pays an individual – either in cash, or through discounts, free travel, or products – the company and influencer should enter a written contract. The contract should oblige the influencer to both “disclose its material connection to the advertiser clearly and conspicuously,” as well as “refrain from making any false or misleading statements about the products and services.”

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nearly identical post to Chiara’s above, but Victoria at inthefrow here has included #ad. Is that clear and conspicuous enough?

Here in the United Kingdom, where influencers are paid to promote, review or talk about a product on social media, the law requires that this must be made clear. The use of editorial content that promotes a product –also known as “advertorials” or “native advertising”– must clearly identify that the company has paid for the promotion.

Earlier this month, the Competition and Markets Authority (CMA) launched an investigation into whether consumers are being misled by celebrities who do not make clear that they have been paid, or otherwise rewarded, to endorse products online. In its press release, the CMA announced that it has already written to a range of celebrities and social media influencers to request information about their posts and the nature of the agreements they have in place with brands. This comes just weeks after Made in Chelsea star Louise Thompson was slapped on the wrist for failing to disclose an Instagram post as a paid-for advertisement for watchmaker Daniel Wellington.

The regulator is also asking consumers to share their experiences, and says it would “particularly benefit from hearing from people who have bought products which were endorsed on social media.”

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Notice that this post says at the top, “paid partnership with.” Is that better than #ad?

The investigation is being carried out under Part 8 of the Enterprise Act 2002 in respect of potential breaches of the Consumer Protection from Unfair Trading Regulations 2008. If an influencer ignores the CMA’s requests to comply with the law, an enforcement order in court. As for next steps, breaching such an order can lead to an unlimited fine or a jail term of up to two years. However, examples of meaningful penalties are still almost non-existent.

What do you think? Are influencer adverts easy enough to spot, without the hashtags and caveats? Interestingly, a study by Bazaarvoice and Morar Research found that nearly half of the 4,000 UK consumers polled are “fatigued” by repetitive influencer content. The majority also said they felt influencers were publishing content that was “too materialistic” and “misrepresented real life.” Notwithstanding this, the World Federation of Advertisers reported that 65% of multinational brands plan to increase their influencer investment. Perhaps there’s truth in what Chiara herself once quipped: “some loved me, some hated me—but they all followed me.”

 

Interested in this topic? Be sure to check out The Fashion Law’s Annual Brand and Influencer Report: The Good, Bad, and Highly Problematic. Featured photo above is Lena Perminova at Paris Fashion Week Autumn/Winter 2018 | Source: Getty Images

Is Taylor Swift getting a copycat Reputation?

Is Taylor Swift getting a copycat Reputation?

Taylor Swift’s latest music video, Delicate, has been criticised for its obvious similarities to a 2016 Kenzo perfume advert directed by Spike Jonze.

In the Kenzo advert, we see a young woman portrayed by actress and dancer Margaret Qualley at a posh black tie event in a hotel. Looking beautiful in an evening dress but nevertheless seemingly uncomfortable and bored, she quietly slips out of the ballroom to pensively roam the hallways of the hotel alone. What made the advert so memorable was that Qualley suddenly starts a wild and garish dance to an upbeat song. W Magazine lauded the advert as “one of the best perfume commercials of all time,” and the Guardian called itone of the most engaging ads” of the year.

Earlier this month, Taylor Swift released the video for Delicate, the latest single off of her sixth studio album, Reputation. Directed by Joseph Kahn, the video follows Swift as she walks through a glamourous hotel, increasingly fatigued with the attention of the press and her adoring fans. She eventually manages to escape through the corridors and, under the premise of being invisible, performs a bizarre dance routine through the hallways.

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the opening tracking shot in each video shows a beautiful but bored woman in an evening dress, but the similarities don’t end there…

In addition to the plot – in which a bored young woman has a crazy dance party in a fancy hotel – the videos share a colour scheme, choreography, and camera angles. Although Taylor’s dress is blue and Qualley’s is green, both are deep jewel tones and cut a similar, sleeveless silhouette. Twitter users were quick to point out that even the facial expressions of the two women appeared to mirror each other.

Kenny Wassus, New York Magazine’s senior producer of original video, called Taylor’s video “the drunk sorority knockoff” of the original Kenzo advert. Twitter users have been sharing a slew of direct comparisons between the two videos, including:

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“gorilla” dance
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crazy facial expressions
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profile tracking shot of militant stomping

To be fair, there are a few differences. Qualley’s only audience remains the camera, while an “invisible” Swift can dance through crowds. Qualley wears heels, whereas Swift kicks hers off to dance barefoot. Qualley’s performance ends by jumping through a massive logo for the perfume, whereas Swift’s show ends in the rain with her meeting a mysterious person.

The Kenzo advert was a viral success because, as AdWeek explained, “the exuberantly choreographed video was less about technical innovation than about how it changes the way women are portrayed in marketing.” Fans of Swift may therefore be somewhat unnerved that the international pop star, known for being a creative, self-made woman (see Taylor Swift: from saccharine songstress to fearless feminist) has chosen in this instance to be so heavily inspired by another artist’s originality.

Despite claims that Swift’s video is a “blatant rip off”, a Kenzo representative told Dazed that they will not be making a comment on the matter. Accordingly, a lawsuit or formal complaint is unlikely. Taylor Swift’s representation are yet to respond to the criticism.

Delicate is not the first video directed by Joseph Kahn to invite copyright controversy. His earlier project for Swift, Look What You Made Me Do, was compared by many to Beyoncé’s Formation. 

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Swift vs Beyoncé

In my earlier post All the Stars and Constellations, I noted that inspiration is a common and important part of most creative processes. Even the most original ideas borrow from earlier art, expressions, and themes. The question in this instance concerns the grey area between inspiration and copyright infringement. While plagarism can be easy to spot, the Taylor Swift videos present more of a challenge. Remember, copyright law only protects specific expression of an idea, and not the idea itself.

Kenzo and Spike Jonze are unlikely to pursue legal action, because one cannot obtain intellectual property rights for a vibe or feel of a video – or even the “plot” of a woman dancing through a hotel. However, it’s worth noting that this matter is already being heard in the court of public opinion, and the verdict doesn’t seem to favour Swift.