Behavioral Marketing

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On Thursday, the Digital Advertising Alliance (“DAA”) announced that it will enforce its previously issued “Application of Self-Regulatory Principles to the Mobile Environment” (the “Mobile Guidance”) beginning September 1, 2015.

Although the Mobile Guidance was initially issued in July 2013, enforcement was delayed pending the DAA’s implementation of…

With paywalls and premium subscriptions finding only modest success, paid advertisements remain the primary means of generating revenue from online content. Native advertising has emerged as a leader in the competition for ad impressions and brand engagement. Expected to grow from $7.9 billion in spending this year to $21 billion by 2018, native advertising is lauded as the future of online advertising.

On October 28, the Online Interest-Based Advertising Accountability Program (Accountability Program), released five decisions in which the website operators  have agreed to update their respective websites to provide enhanced notice as required under the Self-Regulatory Principles for Online Behavioral Advertising (OBA Principles).  The Accountability Program enforces the OBA Principles on…

The Better Business Bureau (“BBB”) and the Direct Marketing Association (“DMA”) are in charge of enforcing the ad industry’s Self Regulatory Principles for Online Behavioral Advertising (“OBA Principles”), which regulate the online behavioral advertising activities of both advertisers and publishers (that is, web sites on which behaviorally-targeted ads are displayed or from which user data is collected and used to target ads elsewhere). Among other things, the OBA Principles provide consumers transparency about the collection and use of their Internet usage data for behavioral advertising purposes. Specifically, the “Transparency Principle” requires links to informational disclosures on both: (i) online behaviorally-targeted advertisements themselves, and (ii) webpages that display behaviorally-targeted ads or that collect data for use by non-affiliated third parties for behavioral advertising purposes. The “Consumer Control Principle” requires that consumers be given a means to opt-out of behavioral advertising.

Through its “Online Interest-Based Advertising Accountability Program”, the BBB recently enforced the OBA Principles in a series of actions—some with implications for publishers and some with implications for advertisers.

We’re all familiar with the ads that pop up on the side of our browsers, personalized to highlight things we might be interested in based on our web browsing activity.  Marketers and advertisers regularly track consumers’ online activities, interests and preferences and use the information they collect to create targeted ads, meant to appeal to individual consumers based on their behavioral profiles.  Some consumers have no objections to this type of targeted advertising, but others do not want their online activities monitored.  In response to privacy concerns raised by pervasive online tracking, the U.S. Federal Trade Commission endorsed the implementation of a Do Not Track (“DNT”) mechanism and the World Wide Web Consortium (“W3C”) has been working to develop a DNT technology standard that would allow users to control the tracking of their online activities. 

The French, Italian, British, German, Spanish and Dutch Data Protection Authorities announced on April 2, 2013 that each will launch investigations and enforcement actions against Google on the grounds that its privacy policy is not compliant with the European Directive on Data Protection, available at http://eur-lex.europa.eu/en/index.htm, (the “Directive”).

The Federal Trade Commission has announced a settlement agreement with ScanScout, Inc., an online advertising network alleged to have made misleading statements in its privacy policy which omitted to disclose ScanScout’s use of Flash cookies. The settlement terms require ScanScout to implement various conspicuous (i.e., not hidden in the privacy policy) notices regarding behavioral tracking and opt-out mechanisms that are reflective of recent FTC guidance and developing industry standards. Companies engaging in behavioral tracking (using Flash cookies or otherwise) may look to the terms of this settlement agreement for color on what the FTC wants to see in terms of consumer notices and choices.