October 1, 2022

Volume XII, Number 274

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September 30, 2022

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September 29, 2022

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NAD Brings False Advertising Claims Over Privacy Representations

The National Advertising Division, a self-regulatory body that examines the truth and accuracy of advertising claims, recently examined privacy claims made by Brave, Inc. Using the same analysis given to other advertising claims, the NAD analyzed Brave’s statements about consumer privacy. It assessed both the implied as well as the express claims made by the company as well as the extent to which the substantiation Brave had for the claims supported those claims.

Brave provides consumers with a web browser that it promoted as “stop[ping] online surveillance” and one that could shield “everything… that can destroy your privacy.” The NAD also felt Brave was making an implied claim, namely that information was not shared with third parties. The NAD came across these claims as part of its regular monitoring, believing they were unqualified affirmative promises that needed to mirror the data relied on for substantiation. In response to the inquiry, Brave provided substantiation to the NAD supporting the claims. Included in its evidence were its own studies of its browsers’ performance, as well as third-party expert analysis.

The NAD compared the substantiation provided to the claims. It found that the express claims about stopping surveillance and shielding from the destruction of privacy were not supported. While the evidence might show that Brave might use industry best practices, the NAD argued, this did not support the broad unqualified claims made by Brave. The NAD found, though, that the implied claim of not sharing with third parties was supported by evidence that Brave does not store users’ information, nor does it share it with third parties.

While disagreeing with the NAD’s conclusions about its express claims, Brave agreed to comply with the NAD’s recommendations. It further stated that it is no longer using the claims in question. Advertisers who decline to follow NAD recommendations can be referred to the FTC for further action under Section 5 of the FTC Act, and the FTC takes these referrals on a priority basis.

Putting It Into Practice: This case is a reminder that privacy representations may be viewed as advertising claims. As such, they need to be accurate and supported by the evidence. Additionally, claims will be examined not only for what they expressly communicate, but also for their implied message.

 

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XII, Number 207
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About this Author

Liisa Thomas, Sheppard Mullin Law Firm, Chicago, Cybersecurity Law Attorney
Partner

Liisa Thomas, a partner based in the firm’s Chicago and London offices, is Co-Chair of the Privacy and Cybersecurity Practice. Her clients rely on her ability to create clarity in a sea of confusing legal requirements and describe her as “extremely responsive, while providing thoughtful legal analysis combined with real world practical advice.” Liisa is the author of the definitive treatise on data breach, Thomas on Data Breach: A Practical Guide to Handling Worldwide Data Breach Notification, which has been described as “a no-nonsense roadmap for in-house and...

312-499-6335
Dhara Shah Law Clerk Chicago Shephard Mullin Richter & Hampton LLP
Law Clerk

Dhara Shah is an law clerk in the Intellectual Practice Group in the firm’s Chicago office.

312-499-6336
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