The California Consumer Privacy Act, drawn up hastily to avert a threatened ballot initiative, purports to create six new categories of data-related consumer rights, “including the right to know; the right of data portability; the right to deletion; the right to opt-out of data sales; the right to not be discriminated against as a user; and a private right of action for data breaches.” Although sometimes compared to the European GDPR, the two laws are different and compliance with the one enactment (which has been immensely expensive already) does not accomplish compliance with the other. Expect uncertainty, fines, the California specialty of entrepreneurial class-action litigation, and more tilting of compliance cost structures to the benefit of tech companies and advertising intermediaries big enough to afford to spread the high expense over large revenue streams [Alec Stapp, Truth on the Market; more: Al Saikali, Washington Legal Foundation; Petrina McDaniel, Elliot Golding and Keshia Lipscomb, Squire Patton Boggs]
The Godiva chocolate company puts “Belgium 1926” on many of its labels and promotional materials, referring to its origins nearly a century ago in Brussels. “Kevin Fahey, of Virginia, argued in a lawsuit filed in D.C. this week that Godiva commits ‘massive fraud’ by suggesting on product labeling and their website that their products are Belgian…. ‘It is important to emphasize that “Belgium 1926” signifies the place and year of the company’s founding. It does not imply that a product purchased today was made in Belgium nearly one hundred years ago,’ the company said in a statement.” A similar lawsuit was dismissed earlier in California. [Andrea Swalec, NBC Washington; Scott MacFarlane]
The European Union’s General Data Protection Regulation (GDPR), which went into effect just over a year ago, has resulted in a broad array of consequences that are expensive, unintended, or both. Alec Stapp reports at Truth on the Market, with more discussion at Marginal Revolution:
GDPR can be thought of as a privacy “bill of rights.” Many of these new rights have come with unintended consequences. If your account gets hacked, the hacker can use the right of access to get all of your data. The right to be forgotten is in conflict with the public’s right to know a bad actor’s history (and many of them are using the right to memory hole their misdeeds). The right to data portability creates another attack vector for hackers to exploit.
Meanwhile, Stapp writes, compliance costs for larger U.S.-based firms alone are headed toward an estimated $150 billion, “Microsoft had 1,600 engineers working on GDPR compliance,” and an estimated 500,000 European organizations have seen fit to register data officers, while the largest advertising intermediaries, such as Google, appear to have improved their relative competitive position compared with smaller outfits. Venture capital investment in Euro start-ups has sagged, some large firms in sectors like gaming and retailing have pulled out of the European market, and as of March more than 1,000 U.S.-based news sites were inaccessible to European readers.
The plain language of the GDPR is so plainly at odds with the business model of surveillance advertising that contorting the real-time ad brokerages into something resembling compliance has required acrobatics that have left essentially everybody unhappy.
The leading ad networks in the European Union have chosen to respond to the GDPR by stitching together a sort of Frankenstein’s monster of consent,a mechanism whereby a user wishing to visit, say, a weather forecast is first prompted to agree to share data with a consortium of 119 entities, including the aptly named “A Million Ads” network. The user can scroll through this list of intermediaries one by one, or give or withhold consent en bloc, but either way she must wait a further two minutes for the consent collection process to terminate before she is allowed to find out whether or it is going to rain.
This majestically baroque consent mechanism also hinders Europeans from using the privacy preserving features built into their web browsers, or from turning off invasive tracking technologies like third-party cookies,since the mechanism depends on their being present.
For the average EU citizen, therefore, the immediate effect of the GDPR has been to add friction to their internet browsing experience along the lines of the infamous 2011 EU Privacy Directive (“EU cookie law”) that added consent dialogs to nearly every site on the internet.
The United Kingdom’s Advertising Standards Authority (ASA) has “instituted a ban on gender stereotypes ‘that are likely to cause harm, or serious or widespread offence.'”
According to the ASA’s overview, setups that will likely be in violation of the law include but are not limited to:
* An ad that depicts a man with his feet up and family members creating mess around a home while a woman is solely responsible for cleaning up the mess.
* An ad that depicts a man or a woman failing to achieve a task specifically because of their gender e.g. a man’s inability to change nappies [diapers]; a woman’s inability to park a car.
* Where an ad features a person with a physique that does not match an ideal stereotypically associated with their gender, the ad should not imply that their physique is a significant reason for them not being successful, for example in their romantic or social lives.
* An ad that seeks to emphasise the contrast between a boy’s stereotypical personality (e.g. daring) with a girl’s stereotypical personality (e.g. caring) needs to be handled with care.
* An ad aimed at new mums which suggests that looking attractive or keeping a home pristine is a priority over other factors such as their emotional wellbeing.
It will not be a defense of a stereotype that it is by and large true — that, for example, persons whose physique departs significantly from social expectations might genuinely face worse average outcomes in their romantic lives.
The rules do allow a few exceptions; for example, it will still be fine for advertisers in Britain to invoke gender stereotypes for purposes of challenging them. [Billy Binion, Reason]
Happy Independence Day!
- Can a law ban calls to police by the public that are based on stereotyping or bias? Grand Rapids may find out [Scott Greenfield]
- Courts and EEOC have held that the federal ban on pregnancy discrimination encompasses a ban on discrimination related to abortion [Jon Hyman] Legislative proposal in Ohio, fortunately given little chance of passage, would make anti-vaxxers a protected group under state employment discrimination law [same]
- “Finally Some Robust Research Into Whether ‘Diversity Training’ Actually Works – Unfortunately It’s Not Very Promising” [Jesse Singal, British Psychological Society Research Digest, earlier]
- New EEOC employer reporting requirements represent “an order of magnitude increase in the amount of information the government wants” for one recreation management business [Coyote] How are federal agencies doing on civil rights issues in this administration? Federalist Society panel with Gail Heriot, Kenneth Marcus, Theodore Shaw, Timothy Taylor, moderated by Erik Jaffe;
- When an outcry arose over its partnership decisions, “Paul, Weiss did what every other mainstream institution does today when accused of racial bias: it fell on its sword.” [Heather Mac Donald, City Journal via Eugene Volokh]
- “Targeted Advertising and Age Discrimination: An Explainer” [Joe Ruckert, On Labor]
“A federal appeals court on Thursday blocked a San Francisco law requiring health warnings on advertisements for soda and other sugary drinks in a victory for beverage and retail groups that sued to block the ordinance.” The ruling, by a unanimous 11-member en banc panel of the Ninth Circuit, found that thelaw violates First Amendment rights of commercial speech. [AP/BakersfieldNow; American Beverage Association v. City and County of San Francisco]
Jameela Jamil (“The Good Place”) wants to ban airbrushing in magazines and advertisements, warning BBC readers that, “If you buy the products airbrushing is used to advertise, you won’t look like the person in the photograph.”
“If this comes as a surprise to you, please exercise caution before stepping out of doors or in front of a mirror,” I reply in my new op-ed in southern California newspapers. “Here in the land of liberty, fortunately, we recognize that to ban display of someone’s airbrushed image even if they’re fine with the idea would constitute a trifecta of coercion, stomping on personal autonomy, freedom to contract with others, and freedom of the press.” Read it here.
We’ve posted often about lawyer-driven slack-fill lawsuits, in which class action filers claim that food, cosmetic, and other products sold by weight have excessive empty space in their packaging. (Laws governing food packaging allow for empty space that serves a function such as protecting the product from damage or shoplifting, but there is room for much disagreement on what is or is not needed for functionality.) The suits’ outcomes can seem random if not whimsical: Ferrara Candy recently agreed to pay $2.5 million to settle claims [Douglas Yu, Confectionery News] while the makers of Fannie May and Junior Mints successfully obtained dismissal of suits against them in federal courts [Scott Holland, Cook County Record; Bloomberg]
California has been a hotspot of slack-fill litigation, but now the California legislature has passed a bill, signed into law by Gov. Jerry Brown in September, expanding the list of safe-harbor defenses that manufacturers (prospectively, in future suits) can assert against slack-fill claims. While the changes are limited in scope and will still allow many suits to go forward, it is noteworthy for California’s legislature to take even symbolic steps against the state’s busy class action industry. [Sarah L. Brew, Tyler A. Young, Emily R. Bodtke and Rita Mansuryan, The Recorder; Robert Niemann and Jill Mahoney, Washington Legal Foundation]
The “One a Day” brand of multivitamins was introduced in 1940. As the company diversified its product offerings in the intervening years it should probably have transitioned over to some other brand name. That way a California court would not have green-lighted a suit by a man suing because the label says he should take two Vitacraves a day instead of one [William Sassani, Chamber-backed Legal NewsLine]
Sweden’s advertising ombudsman has ruled the much-shared “Distracted Boyfriend Meme” improperly presents women as “sex objects” and is “a stereotypical picture of men seeing women as interchangeable”. While the industry panel itself has no power to impose a legal ban, its views might prove consequential since the Stockholm city council has enacted a ban on sexist billboards in public spaces. [Catherine Edwards, The Local]