BEHAVIOURAL

“CLEAR AND PROMINENT” NOTICE

In a 55-page report produced by the USA “Federal Trade Commission”, a new challenge has been thrown down to the newly formed “Behavioral Targeting Standards Consortium”, and it will be interesting to see how they respond. Within the report, there is arguably a two-pronged kernel which the industry must not ignore. The kernel is the guideline regarding “clear and prominent notices”.

While the FTC has eschewed the need for new laws to regulate online ad companies, it has called on such companies to provide “clear and prominent notice” about behavioral targeting, and also allow consumers to “opt out” of such targeting.

Privacy advocates suggest that there is need for a “do-not-track” registry, akin to the Mailing Preference Service available in the UK which enables homes to opt out from receiving “junk mail”. They argue, and we concur, that a system which relies on “site-by-site” opt-outs is “calculated to fail”.  Initiatives such as the Network Advertising Initiative are good, but perhaps it should be simpler still. If these firms can collude this far, they can collude further, to a single “opt-out” - and they can make it clearer on the websites involved.

Can we logically conclude that the Behavioral Targeting Standards Consortium will take this into consideration when producing some additional new definitions and guidelines? The FTC call for “clear and prominent” notices must now be addressed and defined by the BTSC, such that all BTSC members – and their client websites – apply these notices. Furthermore, they must logically apply them within a reasonable timeframe. If they fail, then surely they are courting the regulators.

Goallover believes that these measures will be taken, and proper solutions will be implemented. It appears that the FTC report is sufficient to move the debate forwards, if the major technology players are serious about providing transparency. If companies like Wunderloop, Revenue Science, Specific Media, ValueClick, Platform-A and others do not move to provide “clear and prominent” notices, then they are ignoring the FTC report.

It is the above companies that appear to be in the line of fire. In simple terms, it appears that Wunderloop Connect moves Wunderloop into the firing line; Revenue Science has moved its business model into the firing line, but Specific Media is perhaps the most obvious new target for the smoking guns.
Buying advertising inventory from publishers and using these buys to drop behavioral targeting capabilities, without even contracting the publishers to this end, appears to represent one of the least transparent approaches to behavioural targeting. In other words, if a technologist actually hides its actions from the publishers, it is impossible for either the technologist or the publisher to comply with the “clear and prominent notice” requirement from the FTC.

Goallover would welcome a dialogue with Specific Media to better understand if Specific Media is also “knowingly breaching” the publisher privacy policy of its suppliers, and if Specific Media is doing the decent thing by advising suppliers of its actions. An interview with Specific Media’s CEO is offered herewith.

The FTC defines behavioural advertising as “the tracking of consumer’s online activities over time – including the searches the consumer has conducted, the web pages visited, and the content viewed – in order to deliver advertising targeted to individual consumer’s interests.

It would appear that that FTC also makes a very clear definition of “first party” advertising – effectively clarifying that an independent publisher who deploys behavioural technology on their own independent property is not in the firing line.

The FTC is saying that it is not a problem for a publisher to know that a visitor has reviewed travel content before targeting them with travel advertising while the same visitor is later reviewing sports content, because the publisher is not sharing this information with any third party.

However, that is not to say that “first party” publishers who deploy behavioural targeting technology will not be responsible for implementing the same “clear and prominent” notices. Therefore, the conclusion of this article is that the behavioural technologists now have an obligation to ensure that they make clear to the sites and publishers they serve two things –

1) They should clarify exactly what they mean by “clear and prominent” notices at an industry level, and produce a clear definition which can be added to the BTSC definitions.
2) They should cease to trade with any publisher or partner who fails to implement clear and prominent notifications to consumers regarding the programs in which they participate.

It would be easy to go further. Organizations like IASH in the UK, the body responsible for ensuring the proper commercial behaviour of its network members, should arguably approve new requirements within its audit process, to ensure its members are not in breach of these FTC guidelines.

Will brands now call on their agencies to start questioning their suppliers and ensure that new buying terms and conditions are better phrased than those recently issued by Mindshare? Instead of contracting to try and clarify who owns these data sets, brands might be better served by requiring their agencies ensure that the technology used to collect consumer data is not breaching FTC guidelines.

Privacy is undoubtedly a sensitive issue. The industry must grow up and face its responsibilities now, rather than paying lip service one day and continuing to cloud and smokescreen the next. In the UK, the Information Commission not only has new powers to impose penalties on those who negligently breach UK data protection laws, but it can also simply switch off those businesses which persistently breach or willfully ignore the law.

That should concentrate a few minds.

© 2009 GOALLOVER.