Online Behavioural Advertising

The survey commissioned by the Internet Advertising Bureau and Olswang LLP into consumer attitudes towards online behavioural advertising or “interest based advertising” has been out for a little while now but interest in the field shows no sign of abating. In addition to the OFT’s market study the All Party Parliamentary Communications Group recently threw its hat into the ring with its report “Can we keep our hands off the Net?” calling, amongst other things, for opt-in to the use of all behavioural advertising technologies.

Thus far, it has tended to be user reaction rather than legal intervention that seems to have shaped the industry’s approach to OBA. User reaction seems to have been a key consideration behind BT’s decision in July 2009 to cease implementation of Phorm, while the online petition by Facebook users against Beacon in 2008, rather than strict legal considerations, is what seems to have driven Beacon to an opt-in (rather than opt out) consent model.

Privacy norms in this field will take time to develop given the different legal approaches within Europe let alone outside it. How should we think about the issues in the meantime?

European legislators have emphasized that if necessary new regulation could be introduced to deal with the anonymised profiles created via much online behavioural advertising. Meglena Kuneva, Consumer Affairs Commissioner, speaking earlier this year, indicated: “the current work on privacy has concentrated on eliminating personally identifiable information such as name or IP addresses from the public domain…..consumer policy needs to go beyond that and address the fact that users have a profile and can be commercially targeted based on that profile, even if no one knows their actual name.”

Such an approach reflects the established opinion of the Article 29 Working Party that ISPs and search engines would be required to treat IP information as personal data unless they can distinguish with “absolute certainty that the data correspond to users that cannot be identified”.

Given the extent of the scrutiny of market practices which regulators are signalling, a key question for those participants who favour self-regulation (not all of them, see parliamentary report above) will be how to communicate (and be seen to be communicating) to consumers in a meaningful way the choices available to them and how to exercise those choices. Whatever one might think of consumers expressing their view on such matters, the survey suggests they have a clear view on the level of control they would like over this form of advertising – for a copy of the survey please contact Datonomy.

There will be an opportunity to exchange thoughts with your peers on the issues at the Advertising+Technology event at Olswang on 8 December. Datonomy will be reporting further in the meantime and from the event itself.

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