Web Behavioral Ad Self-Regulatory Program Issues First Compliance Warning to Industry

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By Katie W. Johnson  

Oct. 16 --Website operators and publishers have until Jan. 1, 2014, to provide notice and choice to consumers about the collection and use of their data for online behavioral advertising (OBA) in cases where third parties such as ad networks do not provide adequate notice, the Online Interest-Based Advertising Accountability Program said in its first compliance warning issued Oct. 14.

The program, which is operated by the Council of Better Business Bureaus' Advertising Self-Regulatory Council (ASRC), is one of two accountability agents with the responsibility for enforcing the Self-Regulatory Principles for Online Behavioral Advertising.

The “Transparency Principle” requires that both first parties, such as websites, and third parties, such as ad networks, provide “enhanced notice.” This form of notice involves providing real-time notice to a consumer about OBA data collection and use, as well as a mechanism to opt out of such data collection and use, according to the compliance warning.

Enhanced notice is sometimes provided through the Digital Advertising Alliance's Advertising Option Icon (AdChoices Icon), which links to a disclosure about OBA data collection and use practices and provides an opt-out mechanism, the program said.

Lack of Compliance

Although first and third parties share the responsibility for providing enhanced notice, some companies are confused about how that responsibility applies to first parties, the program discovered.

“In the course of its compliance monitoring activities, the Accountability Program has noted that a significant minority of website operators that are otherwise in compliance with the OBA Principles are omitting notice of data collection for OBA on their websites in cases in which the third parties are not able to provide real-time notice without first-party assistance,” the program said.

It found pages on websites where third parties were collecting consumer data for OBA purposes but where no ads provided notice. The program warned:

Unless an ad bearing in-ad notice is served on every Web page of a publisher's site where third parties are collecting data for OBA and that notice directs a consumer to the choice mechanisms of all third parties collecting on that Web page or to an industry-developed choice mechanism, the Transparency Principle's enhanced notice requirement for collection is not satisfied, and the website operator cannot rely on the third party's in-ad enhanced notice as provided under Section II.A.2. of the OBA Principles (Third Party Advertisement Notice).  

The program said it will being enforcing this requirement Jan. 1, 2014.

It also emphasized that a link to the website operator's disclosure must be separate from the link to its privacy policy.


 

It “would be inequitable to single out the seven companies that were otherwise in full compliance with the OBA Principles for an enforcement action, without giving them the same opportunity as we were affording other companies to benefit from this general Compliance Warning.”  

Formal Reviews Closed

Also on Oct. 14, the program announced that it had administratively closed formal reviews of seven companies whose websites did not provide enhanced notice.

The program said it “felt that it would be inequitable to single out the seven companies that were otherwise in full compliance with the OBA Principles for an enforcement action, without giving them the same opportunity as we were affording other companies to benefit from this general Compliance Warning.”

The factors convincing the program to close the reviews included the companies' “longstanding compliance” with other OBA requirements, the widespread confusion about the enhanced notice requirement, the lack of a Federal Trade Commission or industry best practice concerning enhanced notice and the seven companies' cooperation with the program.

The names of the seven companies are not being made public, Linda Bean, director of communications at the ASRC, told Bloomberg BNA Oct. 16.

 

To contact the reporter on this story: Katie W. Johnson in Washington at kjohnson@bna.com

To contact the editor responsible for this story: Barbara Yuill at byuill@bna.com


The compliance warning is available at http://www.asrcreviews.org/wp-content/uploads/2013/10/Accountability-Program-First-Party-Enhanced-Notice-Compliance-Warning-CW-01-2013.pdf.

The administrative closure document is available at http://www.asrcreviews.org/wp-content/uploads/2013/10/Consolidated-Administrative-Closures-10.14.13-3.pdf.