Christopher Cwalina is a Partner in our Washington D.C. office & James Hibbard an Associate in our West Palm Beach office
On October 28, 2014, the Online Interest-Based Advertising Accountability Program issued a press release detailing several decisions that commence the promised enforcement of its 2013 Compliance Warning to website publishers regarding Online Behavioral Advertising (OBA).1
The Compliance Warning reminds website publishers of the requirement for transparency and consumer control requirements of the Self-Regulatory Principles for OBA (OBA Principles) or face a public compliance action.
The OBA Principles were adopted to improve consumer understanding of, and control over interest-based advertising. Transparency and Consumer Control are cornerstones of the OBA Principles, and requires that website publishers give consumers real-time, "enhanced" notice on every page where third parties are permitted to collect consumer data for OBA, and require that consumers are given control by providing a link to an opt out mechanism. Previously, such information was generally only found in the traditional privacy policy, and data collection for OBA took place without consumer knowledge and control.
This should remind website publishers of their responsibility to ensure that the delivery of enhanced notice is just as apparent when third-parties are collecting data for OBA on their websites, as when the publishers themselves are collecting the data. In either case, the consumer should be able to click on a link and go directly to a place where they can learn more about OBA, and find an opt-out tool.
"[This is] only the beginning of our enforcement of website notice and choice," said Accountability Program Director Genie Barton. "We strongly urge companies who have questions about their compliance responsibilities under the OBA Principles to contact us before we contact you."
The best way for companies to manage risk and ensure compliance is to be aware of how the OBA Principles apply to their websites and mobile apps, and whether enhanced notice, increased transparency, and greater consumer controls are necessary. Holland & Knight's Data Privacy Testing Lab assists companies in identifying these issues and provides recommendations on how to best ensure compliance.
Footnote
1 Online behavioral advertising, otherwise known as interest-based advertising, occurs when a company uses information and data gathered from a user's preferences and internet activity to tailor specific advertisements to that user. Users are then shown advertisements that match their previous searches, making the ads targeted and generally more successful.
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