Earlier this month, the Director of the Federal Trade Commission’s Bureau of Consumer Protection (“FTC”) sent a joint letter to Facebook, Inc. (“Facebook””) and WhatsApp Inc. (“WhatsApp”) in anticipation of Facebook’s acquisition of WhatsApp, an instant messaging service with hundreds of millions of users worldwide.
While hailing WhatsApp’s Privacy Policy, the FTC reminded WhatsApp and Facebook that WhatsApp “has made a number of promises about the limited nature of the data it collects, maintains, and shares with third parties – promises that exceed the protections currently promised to Facebook users.” The FTC stated that WhatsApp’s users have agreed to use the service with the understanding that WhatsApp’s promises in its Privacy Policy will be honored including, among other things, that WhatsApp will not collect its users’ location data, use mobile telephone numbers or other personally identifiable information (“PII”) to send commercial marketing messages without its users’ consent, or sell or share its users’ PII with third party companies for their commercial or marketing use.
The FTC noted public statements and “clear promises” made by both Facebook and WhatsApp confirming that WhatsApp will operate as a separate company after the Facebook acquisition and will honor its privacy and security commitments to its users. The FTC cautioned the companies that the failure to keep promises made about privacy would constitute a deceptive trade practice under Section 5 of the FTC Act. It further stated that a company cannot use data in a manner that is materially inconsistent with promises that were made at the time of its collection without first obtaining affirmative express consent.
The FTC also reminded Facebook that it is bound by an FTC order that requires Facebook to obtain affirmative express consent before sharing users’ nonpublic information in a matter that “materially exceeds any privacy setting.”
If you are interested in learning more about this topic or would like us to review your Privacy Policy, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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