Will industry recommendations for Online Behavioural Advertising Protect the Digital Economy?
The use of online behavioural advertising has been the focus of much discussion in the publishing and advertising sectors following the revisions to the e-Privacy Directive in December 2009.
The use of online behavioural advertising has been the focus of much discussion in the publishing and advertising sectors following the revisions to the e-Privacy Directive in December 2009. As covered elsewhere on this site, these revisions, if interpreted narrowly, could require an opt-in regime for targeted content, well beyond the current common practice of allowing users to opt-out through browser settings (and other mechanisms).
Not surprisingly, industry has reacted fiercely to the proposed changes. In our view, a strict opt-in regime would be a disproportionate measure for the following reasons:
- consumers' rights to privacy can be adequately addressed through enhanced transparency and clear opt-out arrangements through preference settings, and a one-size-fits-all opt-in structure would only address the wishes of the few but
- an opt-in mechanism could have a seriously detrimental affect on consumers' online experience due to the additional pop-up boxes that would be needed
- publishers would find it more difficult to monetise content through ad-funded models, leading – potentially – to more pay walls or – generally - less investment in relevant, compelling content
- consumers surfing the web would be less likely to be served content relevant to their interests, making the online experience less relevant and more cumbersome
- the measures could seriously affect the competitiveness of the EU digital economy
It is not denied that there is an issue to address – it is hard to argue against a requirement for consumers to be given more transparency about how websites profile them, and the opportunity to make a clear, informed decision through preference settings and, ultimately, to opt-out where required. Recent industry-level proposals address this need; the European Advertising Standards Alliance ("EASA") and its industry members (which include the UK’s Advertising Standards Authority) have been actively involved in focusing these industry discussions on a Best Practice Recommendation on Online Behavioural Advertising ("BPR"). The BPR is intended to complement the Online Behavioural Advertising Framework – a set of principles for companies specifically collecting and using data for this purpose - and proposes to establish a pan-European self-regulatory standard, key measures of which include:
- A European-wide icon in every display ad that used this technique that links to a landing page giving consumers information about online behavioural advertising they have been served (e.g. the companies involved in providing the advertisement) and an industry website giving them the opportunity to manage their preferences and turn it off.
- A new procedure to measure compliance with the commitments of signatory companies, and to establish a system of enforcement and dispute resolution to deal with consumer complaints in a transparent and accessible way. This includes the use of a renewable "seal" to be awarded to compliant companies, which may be removed if a company does not remedy a breach of the Framework within a specified timeframe.
EASA intends to finalise the BPR by the end of April 2011 then roll it out over the following 12 month period via national industry associations and self-regulatory organisations. It hopes that by mid 2012, 70% of all online behavioural advertising will carry the icon and link to the consumer web tools.
Nick Stringer, Director of Regulatory Affairs at the Internet Advertising Bureau, a UK trade body which has supported the Framework and Best Practice Recommendation, comments as follows.
"This initiative will provide greater transparency and consumer control across Europe for behavioural advertising, a technique that provides relevant marketing and helps fund creative content that consumers want and enjoy. Like the recycling logo, we want the icon to be globally recognised and – with one click – it will provide consumers with access to helpful information as well as empowering them to manage their preferences."
Whilst the proposals will not of course have the force of law, it is hoped that they will influence the legislators, and in turn the regulators, and result in an appropriate balance between the need to protect consumers through enhanced transparency requirements against the need to retain a competitive European market offering relevant content to consumers on an economic basis that reflects their needs.
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"This initiative will provide greater transparency and consumer control across Europe for behavioural advertising, a technique that provides relevant marketing and helps fund creative content that consumers want and enjoy - Nick Stringer, Director of Regulatory Affairs, IAB"