Francoise Gilbert

Google was hit by a $22.5 million penalty as a result of an investigation by the Federal Trade Commission covering Google’s practices with users of the Safari browser. A very interesting aspect of this new case against Google (Google 2), is that it raises the issue of Google’s violation of the Self-Regulatory Code of Conduct of the Network Advertising Initiative (NAI Code). This is an interesting evolution in the history of the FTC rulings. At first, the FTC focused on violation of privacy promises made in Privacy Statements, then it went on to pursue violation of the Safe Harbor Principles. In this new iteration, the FTC attacks misrepresentation of compliance with industry standard.

Misrepresentation of user’s ability to control collection or use of personal data

Two elements distinguish this case (Google 2) from most of the prior enforcement actions of the FTC. One is that the large fine results, not directly from the actual violations of privacy promises made in Google’s privacy policy, but rather from the fact that Google’s activities are found to violate a prior settlement with the FTC, dated October 2011 (Google 1).

In Google 1, Google promised not to misrepresent:

  • (a) The purposes for which it collects and uses personal information;
  • (b) The extent to which users may exercise control over the collection, use and disclosure of personal information; and
  • (c) The extent to which it complies with, or participates in, a privacy, security, or other compliance program sponsored by the government or any other entity.

According to the FTC complaint in Google 2, Google represented to Safari users that it would not place third party advertising cookies on the browsers of Safari users who had not changed the default browser setting (which by default, blocked third party cookies) and that it would not collect or use information about users’ web-browsing activity. These representations were found to be false by the FTC, resulting in a violation of Google’s obligation under Google 1 (see paragraph (b) in bulleted list above.

Misrepresentation of compliance with NAI Code

The second, and more interesting element of the Google 2 decision, is the FTC analysis of Google’s representation that it adheres to, or complies with the Self-Regulatory Code of Conduct of the Network Advertising Initiative (NAI Code). In the third count of the FTC Complaint in Google 2, the FTC focuses on Google’s alleged violation of the NAI Code.

This alleged violation allows the FTC to show that Google violated its obligation under Google 1 to not “misrepresent the extent to which it complies with, or participates in, a privacy, security, or other compliance program sponsored by the government or any other entity” (see the requirement under (c) in the bulleted list above). The FTC found that the representation of Google’s compliance with the NAI Code was false, and thus violated its obligation in Google 1 not to make any misrepresentation about following compliance programs.

Evolution of the FTC Common Law

Google 2 shows an interesting evolution of the FTC “Common Law.” In its prior cases, the FTC first focused on violations of companies’ privacy promises made in their public Privacy Statements. Then, in several consent orders published in 2011, including Google 1, the FTC expanded the scope of its enforcement action to violations of the Safe Harbor of the US Department of Commerce and the EU Commission. Now, with Google 2, the FTC expands again the scope of its enforcement action to include, as well, violation of Industry Standards such as the NAI Code.

What this means for businesses

The Google 2 Consent Order has significant implications for all businesses.

Companies often use their membership in industry groups as a way to show their values, and to express their commitment to certain standards of practice. Beware which industry group or program you join; understand their rules. As a member of that group or program, you must adhere by its code of conduct, rules or principles. Make sure that you do, and that all of the aspects of your business do comply with these rules.

When a business publicizes its membership in an industry group or a self-regulatory program, it also publicly represents that it complies with the rules or principles of that group or program. For example, those of the Safe Harbor (as was the case under Google 1) or those of the NAI (as was the case under Google 2), or others. Remember that these representations may have significant consequences, and may create a minefield if not attended properly. To stay out of trouble, the company must also make sure that these representations are accurate, and that it does abide by these promises at all times, and with respect to all of its products.

When a company makes a public commitment to abide by certain rules, it must make sure that it does comply with these rules; otherwise, it is exposed to an unfair and deceptive practice action. Make sure that you periodically compare ALL promises your business makes, with what ALL of your products, services, applications, technologies, actually do.