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Areas of Interest
January 22nd, 2014
Recent Decisions Highlight Importance of Compliance with Online Behavioral Advertising Principles
The Online Interest-Based Advertising Accountability Program (Accountability Program) has recently released a handful of decisions addressing the responsibilities of the advertiser, agency and platform when collecting consumer information for online behavioral advertising (OBA). The decisions reiterate much of the guidance the Accountability Program provided in its first Compliance Warning, released in October of 2013. Specifically, the Warning clarified that the Self-Regulatory Principles for Online Behavioral Advertising (OBA Principles) - principles enforced by the Accountability Program - require first parties, such as website operators or publishers, and third parties, like ad networks, to provide real-time, or enhanced, notice (such as an AdChoices Icon) and an opt-out to consumers when third parties are collecting data for OBA on their websites. The Accountability Program announced it would begin enforcement against parties that fail to provide adequate enhanced notice or otherwise comply with OBA Principles starting January 1, 2014.
Below is a summary of the Accountability Program's most recent decisions:
- The Accountability Program initiated an inquiry against 23andMe and two other companies after noticing retargeted 23andMe ads were being served on various websites without enhanced notice. The 23andMe ads were managed by the company's digital marketing agency, 3Q Digital, while a third entity, MediaMath, provided the platform that 3Q Digital used to manage the OBA campaign. On November 20, 2013, in three separate decisions (one for each company involved) the Accountability Program found that each of the companies failed to comply with the OBA Principles by relying on the others to act in accordance with industry standards.
- On November 18, 2013, the Accountability Program found that BMW's privacy policy failed to disclose that the company allowed third-party data collection for OBA purposes. Additionally, according to the decision, BMW's website did not provide enhanced notice of third-party collection on any of its website pages where such collection appeared to be taking place, and did not have an OBA opt-out from interest-based advertising for consumers.
- On November 18, 2013, the Accountability Program found that although Scottrade, Inc. engaged in OBA activity, the company's website did not provided enhanced notice of third-party collection of data for OBA and did not provide an OBA opt-out for users.
The Accountability Program's recent Compliance Warning and its recent inquiries into OBA activities should serve as an important reminder to advertisers, their agencies and others engaging in or supporting OBA, to check their websites, privacy policies, and interest-based ads for compliance with OBA Principles. These parties should ensure that they are providing consumers with enhanced notice and choice where data collection for OBA is taking place.
For more information about this compliance warning and the steps website and online service operators will need to take to comply, please contact Greg Boyd at (212) 826 5581 or gboyd@fkks.com, Claudine Wilson at (212) 705 4842 or cwilson@fkks.com, or any other member of the Frankfurt Kurnit Advertising, Marketing and Public Relations Group.
Other Advertising Law Alerts
What the Advertising Industry Can Learn from Kim Kardashian’s Settlement with the SEC
On October 3, 2022, the Securities and Exchange Commission (SEC) announced that it entered into a $1.26 million settlement with Kim Kardashian over her social media promotion of the EMAX token without disclosing payment she received from token issuer, EthereumMax. The matter provides important lessons for advertisers. Read more.
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Get Ready for California’s New “Automatic Renewal” Rules
California recently amended its Automatic Purchase Renewals law. The amended statute - effective July 1st -- require marketers to provide consumers of automatic renewal or continuous service offers with more information and easier ways to terminate. Read more.
June 22 2018
“Made in the U.S.A.” Claims Continue to be Scrutinized
In 2016, California amended Section 17533.7 of the California Business and Professions Code ("Section 17533"), liberalizing the standard for selling products labeled "Made in U.S.A" to California consumers. Read more.
June 4 2018
