The National Advertising Division (NAD) recently published decisions regarding browser privacy claims. The decisions show that even when a product offers the highest degree of privacy protection in the industry, companies should refrain from making unqualified statements regarding the efficacy of their privacy protection.

Brave (Case Report #7021

In this routine monitoring case, NAD examined claims by Brave, Inc. that its browser “stops online surveillance” and “shields everything . . . that can destroy your privacy.” In support of its claims, Brave provided the results of studies that showed its relative increased protection when compared to other popular browsers and evidence highlighting its role in designing Global Privacy Control.

NAD found that Brave’s substantiation supports Brave’s claim that it does not store user data or share it with third parties, but concluded that even though Brave protects user privacy by blocking some third party surveillance requests, the evidence did not support express claims that users are protected from all online surveillance and third party attempts to access personal data. Additionally, NAD stated that the studies only supported claims about data sent by the browser itself, and not claims about protection provided in mobile handset versions of browsers that could exhibit different behavior than the laptop/desktop versions studied. The NAD opinion states that “although Brave’s privacy protection might represent best practices in the industry . . . the evidence was not a good fit for the broad and unqualified claims” made by Brave.

DuckDuckGo (Case Report #7022)

In another routine monitoring case, NAD evaluated similar claims in a video by DuckDuckGo (“DDG”) advertising its “Privacy Essentials” product as the “best, quickest, and easiest step you can take for your privacy health” and that DDG offers protection for consumer’s privacy “no matter where the Internet takes them.” NAD stated these claims conveyed the message that DDG protects users from all privacy intrusions depicted in the video, including intrusions outside the DDG app.  

DDG showed satisfactory evidence that encryption, tracker blocking, and private search are the key features to safeguarding consumer privacy. And, after evaluating the substantiation provided by DDG, NAD determined that DDG’s Privacy Essentials product was the most comprehensive all-in-one out of the box solution for privacy health. However, because the DDG advertising video showed a consumer using a Facebook and Google app on their phone, NAD recommended modification to clarify that Privacy Essentials could not offer privacy protection in search engines and apps outside of the DDG solution.   

Takeaways

NAD appears to be poised to follow the increased focus in privacy with these two rulings and companies should take care to properly qualify their privacy claims. Even when providing comparatively more privacy protection than other products on the market, the variety of ways users engage with the Internet may require specifically tailored advertising language.