Privacy & Information Security Law Blog

On August 14, 2023, the Federal Trade Commission announced a proposed order against Experian Consumer Services (“Experian”) for failure to comply with the federal CAN-SPAM Act.  The complaint alleges that Experian sent marketing emails that did not provide an unsubscribe opportunity to consumers who had signed up for Experian’s credit monitoring services. The CAN-SPAM Act requires businesses to, in relevant part, clearly and conspicuously display a return email address or Internet-based mechanism that allows consumers to unsubscribe from future marketing emails. While the Experian emails contained a notice stating that the messages related to the consumer’s Experian account (which would make them “transactional” or “relationship” messages under the CAN-SPAM Act, and therefore exempt from the unsubscribe requirement), the complaint alleged that, in actuality, the emails contained only marketing material.

On August 9, 2023, India’s upper house (i.e., Rajya Sabha) passed the Digital Personal Data Protection Bill (“DPDPB”), two days after India’s lower house (i.e., Lok Sabha) passed the legislation. The DPDPB now heads to India President Droupadi Murmu for signature.

On July 25, 2023, Hunton published a client alert discussing the importance of cyber and directors and officers (“D&O”) liability insurance for companies and their executives to guard against cyber-related exposures. In today’s ever-changing threat landscape, all organizations are at risk of damaging cyber incidents and resulting investigations and lawsuits, underscoring the importance of utilizing all tools in a company’s risk mitigation toolkit, including insurance, to address these exposures. 

On July 19, 2023, the European Data Protection Board (“EDPB”) issued an Information Note regarding data transfers to the U.S. following the adoption of an adequacy decision on the EU-U.S. Data Privacy Framework (the “Data Privacy Framework”) on July 10, 2023 (the “Information Note”).

On July 26, 2023, the U.S. Securities and Exchange Commission (“SEC”) adopted long-anticipated disclosure rules for public companies by a 3-2 party-line vote. The final rules apply both to U.S. domestic public companies, as well as any offshore company that qualifies as a “foreign private issuer” under SEC rules due to a strong nexus to the U.S. capital markets. The new rules are effective as soon as December 18, 2023, as detailed further below.

On July 10, 2023, California Governor Newsom signed into law A.B. 127, which places the working group for the California Age-Appropriate Design Code Act (the “Act”) under the California Office of the Attorney General. The Act creates a working group, formally named the California Children’s Data Protection Working Group, to produce a report on recommendations for best practices concerning children’s access to online services. Under A.B. 127, the deadline for the first report from the working group will be pushed back from January 1, 2024, to July 1, 2024, and the working group will be required to consist of only nine members, instead of the original 10-member requirement.

On July 14, 2023, the Norwegian Data Protection Authority (“DPA”) ordered Meta Platforms Ireland Limited and Facebook Norway AS (jointly, “Meta”) to temporarily cease the processing of personal data of data subjects in Norway for the purpose of targeting ads on the basis of “observed behavior,” when relying on either the contractual necessity legal basis (Article 6(1)b)) or the legitimate interests legal basis (Article 6(1)(f)) of the GDPR.

On June 30, 2023, the Delaware House of Representatives passed the Delaware Personal Data Privacy Act (H.B. 154) (the “DPDPA”), a day after the Delaware Senate passed the legislation. The DPDPA heads to Governor John Carney for a final signature. This could make Delaware the 13th U.S. state to enact comprehensive privacy legislation.

Pablo A. Palazzi from Allende & Brea in Argentina reports that on June 30, 2023, the Argentine Executive Branch sent the new proposed Personal Data Protection Bill (the “Bill”) to the National Congress for consideration. The Bill was drafted by the Argentine Data Protection Authority (Agencia de Acceso a la Información Pública, or “AAIP”) and seeks to amend the current Personal Data Protection Act (Law No. 25,326 of 2000).

On July 14, 2023, California Attorney General Rob Bonta (“California AG”) announced a new enforcement sweep aimed at ensuring that companies comply with the California Consumer Privacy Act of 2018 (“CCPA”) with respect to the personal information of employees and job applicants. The exemption for HR-related data under the CCPA expired on January 1, 2023, when the amendments to the CCPA made by the California Privacy Rights Act of 2020 became operative.