Last month the Bureau of Consumer Protection of the U.S. Federal
Trade Commission (FTC) issued guidance regarding the marketing of
mobile Apps. The guidance should be of interest to companies
engaged in cross-border e-commerce activities. It should be
noted, however, that minimum compliance with the FTC guidance may
not result in a App marketer being fully compliant in Canada.
Advertising has a broad compass. The FTC
reminds developers that advertising isn't just a traditional
advertisement but includes a range of representations made
expressly or by implication about what the product does. The
FTC cautions that App marketers require competent and reliable
evidence to support objective claims and may require competent and
reliable scientific evidence to support health
Key information must be clear and
conspicuous. This isn't just a matter of the
size and readability (although those are obviously
important). It also includes the way in which information is
layered. Layering information isn't a licence to hide
information behind vague hyperlinks.
Engage in "privacy by design".
The Ontario Information and Privacy Commissioner's
"privacy by design" approach should be followed.
This includes the principles of limiting collection, secure storage
and safe destruction. Although the FTC did not emphasize the
"privacy by design" principle of privacy as the default,
the FTC did note that sharing of data that would not be expected by
an average consumer should only be done with express consent.
The FTC also states that sensitive information should only be
collected and used with express consent. In addition, mobile
Apps should offer consumers choices and control over their personal
Honour the promises, including privacy promises, made
to consumers. The FTC cautioned that "[c]hances
are you make assurance to users about the security standards you
apply or what you do with their personal information."
Systemic failure to honour these promises or take reasonable steps
to protect personal information may lead to FTC enforcement
Apps designed for children under the age of 13 must
comply with the U.S. Children's Online Privacy Protection Act
(COPPA) and the FTC's COPPA Rule. This will
involve additional disclosures and consent requirements.
FMC is one of Canada's leading business and litigation law
firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
providing outstanding service and value to our clients, and we
strive to excel as a workplace of choice for our people. Regardless
of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
our clients' needs. Visit:
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).