Make Room in the Footer: January 1 Enforcement Deadline Nears for First Parties’ “Enhanced Notice” Obligations Under the Self-Regulatory Principles for Online Behavioral Advertising
The Online Interest-Based Accountability Program (“Accountability Program”) has issued “an advance warning that it will begin enforcement against first parties that fail to provide the required notice under the OBA Principles beginning on January 1, 2014.” The Accountability Program is one of the two accountability agents charged by the Digital Advertising Alliance with enforcing the Self-Regulatory Principles for Online Behavioral Advertising (“OBA Principles”). Under the OBA Principles, first parties include publishers of websites that allow third parties to collect data about their users for retargeting and other online behavioral advertising. The Accountability Program’s warning explains that a “significant minority” of first parties have failed to provide the requisite “enhanced notice” of the OBA data collection occurring on their websites:
“The obligations of first parties under the Transparency Principle are set forth under Section II.B. on pages 13 – 14 of the OBA Principles. This section focuses on the obligations to provide ‘Web Site Notice of Third Party Online Behavioral Advertising’ through a ‘clear, meaningful, and prominent link’ provided by the website operator on each ‘Web page where data is collected’ for OBA . . . . This link, known as the ‘enhanced notice link,’ should take the consumer directly to the website operator’s disclosure of third-party OBA activity that either points to an industry – developed Web page such as the DAA’s Consumer Choice Page (http://www.aboutads.info/choices) or individually lists all the third parties engaged in OBA on its website and provides links to each of their respective choice mechanisms. Either way, a clear, prominent link to the website operator’s disclosure (usually placed in the footer of the website or along a sidebar) must be separate from the link that takes the consumer to the website operator’s privacy policy.”
When the Accountability Program identifies instances of possible noncompliance, it may send the target company a letter of inquiry, asking the company to demonstrate its compliance with the Principles at issue. If, after receiving the company’s answer, the Accountability Program determines that further review is warranted, it will begin a formal review process in which it provides the company with guidance and recommendations, typically culminating in the publication of a decision detailing the nature of the review and its outcome. If the company fails to participate in the review process or to implement the Accountability Program’s recommendations, the Accountability Program will publicize this and the company’s response. It may also refer the matter to government authorities for further action.
