On February 6, the FTC, along with the State of New Jersey, announced a settlement with TV-maker VIZIO related to VIZIO’s alleged data collection practices on millions of its ‘smart,’ network-connected TVs. According to the complaint, VIZIO collected information on consumers which it then shared with third parties, without sufficiently disclosing the data collection and sharing practices.  According to the government, these acts were unfair and deceptive.

This case is worth noting for those in the financial services industry, and indeed anyone subject to federal law prohibiting unfair acts and practices, because Acting Chairwoman Ohlhausen made clear in her concurring statement that she will be launching a new effort in the coming weeks to “examine more rigorously what constitutes “substantial injury” in the context of information about consumers.”

Acting Chairwoman Ohlhausen has long advocated a return to “harm-based” privacy enforcement, which is grounded on pecuniary injury or the threat of such injury, rather than on notional or speculative theories of harm. This effort could have significance beyond the privacy area and  more broadly influence the development of the unfairness doctrine at the FTC and other agencies, such as the CFPB.