On Election Day in California, voters will not only be determining choices among candidates standing for election, but they will also be deciding the fate of Proposition 24, referred to as the California Privacy Rights Act (CPRA). Proposition 24 is intended to build upon the California Consumer Privacy Act (CCPA) that came into force at the beginning of 2020. Among other things, the CPRA would create a California Privacy Protection Agency, a new regulatory agency that would ultimately take over privacy enforcement responsibility from the Office of the California Attorney General.
Among the areas that would be affected by the CPRA would be a clear ban on discrimination against anyone choosing to ask a company to delete their information and opt-out of marketing communications, stronger rights to prevent data sharing by companies (e.g., cross-context behavioral advertising), clearer mechanisms to enable consumers to correct information that is not accurate and a requirement that companies tell consumers how long they plan to retain the information.
Proposition 24 would also legitimize marketing and promotional schemes that offer consumers a discount or access to benefits in exchange for voluntarily disclosing personally identifiable information (e.g., in the context of rewards or loyalty programs). Privacy and data protection proponents and opponents have long debated whether consumers should have an option to pay for privacy – viewed as a logical consequence of offering benefits in exchange for information that can be used for marketing and promotional purposes.
Since the CCPA came into force, companies have already been scrambling to comply. If Proposition 24 passes and CCPA 2.0 comes into force, companies will again have to review and likely revamp their policies and practices to deal with the added new compliance obligations. Just as significantly, a separate California Consumer Privacy Agency would likely end up brining many more enforcement actions since protecting the privacy rights of California consumers will be its only mission. Proponents of Proposition 24 say that may well be a good thing for California consumers, but they also argue that an agency solely focused on data protection will also mean more clarity, consistency and guidance surrounding some of the nuances of the California requirements.
As New York law currently stands basically the only right of publicity that is recognized in New York is the right to prevent appropriation of a living person’s name or likeness (e.g., portrait, picture, image) for commercial purposes. A violation of the law can have both criminal and civil consequences, although only civil actions currently include the misappropriation of ones’ “voice,” in addition to names and photographs. New York courts have also allowed claims based on the use of look-alike models (Onassis v. Christian Dior-New York, Inc., 472 N.Y.S2d 254 (N.Y. Sup. Ct. 1984)).
New York does not recognize any common law right of publicity (Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)). Consequently all New York rights of publicity are purely creatures of statutory law. Of interest in recent years is the fact that unlike over 20 other States in the United States and many jurisdictions internationally,* New York has never recognized any post-mortem rights of publicity. In other words, only living New York persons have any right of publicity and those are governed exclusively by statute!
Well that may change if and when New York State Governor Andrew Cuomo signs a bill recently passed by both houses of the the NYS legislature and although the bill differentiates between “deceased personalities” and “deceased performers,” if signed into law it would broaden the current law and create a new transferable (and inheritable) right that would protect those rights of publicity after death – rights that would last for 40 years after the death of the individual.
This new legislation is likely to have implications to performers, celebrities and others who are domiciled in New York, as well as to advertisers, advertising agencies and sponsors, among others. Once the bill is signed into law, watch for updates on Legal Bytes for more detail. In the meantime, if you have questions or want more information, feel free to contact me, Joe Rosenbaum or any of the Rimon lawyers with whom you regularly work.
* Note: In some jurisdictions, rights of publicity are referred to as “personality rights” and one should never assume these rights are identical in scope or effect.
The FTC and the FDA (Food and Drug Administration) have sent scores of warning letters to companies that may be violating federal law by making deceptive or scientifically unsupported claims about the ability of these products to treat or cure coronavirus. Warning letters have also been sent to voice over Internet protocol (VoIP) service providers and other companies warning against “assisting and facilitating” illegal coronavirus-related telemarketing calls.
You can visit the FTC Coronavirus Warning Letters to Companies web page to see a list of warning letters related to the COVID-19 pandemic. The FTC also keeps track of consumer complaints related the pandemic and updates the data regularly. As of yesterday, there were almost 30,000 COVID-19 related consumer complaints, and although less than 50% of all these complaints report a loss, the estimated fraud losses based on those that do is now well over $20,000,000. For the latest statistics, visit Coronavirus (COVID-19) Consumer Complaint Data, which the FTC updates regularly.
The FTC and the Department of Justice have also issued a joint statement expressing their views on unfair competition and antitrust laws and regulations to make it clear, especially in these extraordinary times of crisis, how firms (including competitors) are permitted to engage in pro-competitive collaboration that does not violate the antitrust laws. You can read the statement at Joint Antitrust Statement Regarding COVID-19.
I am honored at having been notified I will be listed in the 2019 Best of the Best USA Expert Guide, as one of the Top 30 Media Practitioners in the USA.
Over the course of a quarter of a century, Euromoney’s Legal Media Group has researched the world’s legal markets. Based on extensive review, with legal peers and in-house counsel, they identify the world’s leading lawyers, advisers and legal practitioners.
Over these past 25 years, the Expert Guides have become a valuable reference tool and trusted resource for international buyers of legal services.
This is their 25th Anniversary Edition and although I have been listed in previous editions of the Guide to the World’s Leading Technology, Media and Telecommunications Lawyers, each time I receive such a notice, it reminds me of the professional relationships I have enjoyed over the last 40 years and the great privilege I have been afforded of serving and working with clients and colleagues, not only in the USA, but around the world. Thank you!
If you are not already a subscriber to Practical Law, you can read the Practice Note and download a copy for your personal use and reference here: Complying with New York Sweepstakes Law. As always, if you need further information about the publication or you have questions relating to sweepstakes, contests, promotions, advertising or marketing anywhere in the world, feel free to reach out to me, Joe Rosenbaum, Partner or to any of the lawyers with whom you regularly work at Rimon Law. If you wish, you can also review my biography JIR Bio.
On Tuesday, July 24, 2018, I had the privilege of presenting a live, interactive, video-conference program and course entitled “A Perfect Storm: The Intersection of Fake News, Celebrity Endorsements & Social Media,” sponsored by Lawline.
The course was broadcast live and also recorded at Lawline’s Studio in lower Manhattan and is now available for on-demand viewing at Lawline.com. With permission, I have also posted a PDF of the PowerPoint visuals used during the presentation (although you will not be able to see the embedded videos) and you can view or download a copy for your personal use right here: A Perfect Storm: The Intersection of Fake News, Celebrity Endorsements & Social Media
As always, if you need more information, you can contact me directly (Joe Rosenbaum) or any of the Rimon attorneys with whom you regularly work.
To all my Legal Bytes subscribers, fans, readers, family and friends, thank you!
I would like to take a moment and wish all of you a joyous holiday season and health, happiness, success and peace in 2018 and beyond. . . and now I would ask you to take about 4 minutes out of your busy schedule, put down your mobile phones, tablets and video game consoles, click to start the video and take your hands off the keyboard to listen and watch and just enjoy . .
This seminar provided an update on many of the concepts and principles discussed in the first program, including some basic principles of advertising law that applies in both the traditional and digital/mobile environment and provided updated information on game advertising – both advertising the game and in-game advertising – as well native advertising and guidance from the Federal Trade Commission. This recent session also delved into a number of digital and mobile advertising issues that were not part of the first presentation, such as celebrity endorsements, bloggers, experts & consumer testimonials in social media, augmented reality and advertising in virtual worlds, programmatic buying and the current tensions in the industry concerning transparency and relationships between advertisers and integrated agencies. You can view the slide images of my presentation “The New World of Digital & Mobil Advertising” and, of course, you can view the recorded session which is available exclusively through Lawline.
As always, if you need assistance or require any additional information, feel free to contact me, Joe Rosenbaum, at Rimon, P.C.