New rules of Online Behavioural Advertising
From 4 February 2013, an additional regime arrives in the UK for online behavioural advertising (OBA). The Advertising Standards Authority (ASA) is taking over responsibility for ensuring that consumers are made aware of, and can exercise choice over, the collection and use of information for OBA. The ASA’s first step is the introduction of “New transparency and choice rules for Online Behavioural Advertising” (OBA Rules) which will come into force from early February.
OBA is a developed form of targeted advertising whereby third parties partner with websites from whom they collect data on users’ web viewing behaviour in order to target them with advertising that is likely to be of more interest to them.
The new OBA Rules are contained within a new Appendix 3 of the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code). The rules require third parties to inform web users, either in or around online display advertisements, that they are undertaking OBA and require that third parties provide links enabling the user to opt out of the collection and use of their web viewing behaviour for OBA purposes.
The OBA Rules are linked to a pan-European, industry-wide self-regulatory standard and framework overseen by the European Advertising Standards Alliance (EASA).
The OBA Rules – An Overview
The new rules state that third parties must:
(i) obtain explicit consent from web users before using technology to collect and use information about all or substantially all websites that are visited by web users on a particular computer in order to deliver OBA;
(ii) give a clear and comprehensive notice about the collection and use of web viewing behaviour data for the purposes of OBA on their website. This notice must include details of how a web user can opt out from having their web viewing behaviour data collected and used for OBA;
(iii) provide a clear and comprehensive notice about the collection and use of web viewing behaviour data for the purposes of OBA either in or around any display advertisements delivered to other websites using OBA. Again, this notice must include details of how a web user can opt out from having their web viewing behaviour data collected and used for OBA;
(iv) provide, both on their website and in or around the OBA display advertisements, a link to a relevant mechanism that allows consumers to opt out of the collection and use of web viewing behaviour data for OBA purposes by that third party and/or other third parties; and
(v) not create interest segments specifically designed for the purpose of targeting OBA to children aged 12 or under.
In the event that the ASA is unable to identify which third party has served a particular OBA advertisement, the new rules also require advertisers to co-operate with the ASA in good faith to help them identify the third party responsible.
It is worth noting that the OBA Rules do not apply to: contextual advertising; web analytics; ad reporting or ad delivery; the collection and use of information for behavioural advertising by website operators on their own websites or the use of OBA in rich media, in-stream videos online or on mobile devices. Although, it is likely that the rules will be extended to cover mobile devices in the future.
The OBA Rules require web users to be given two types of “clear and comprehensive notice” that their web viewing data is being collected and used for the purposes of OBA. The first notice must appear on the third party’s own website and the second notice must appear in or around any OBA display advertisements.
In its Help Note the Committee of Advertising Practice (CAP) has stated that it is unlikely to be sufficient for the third party to place the notice in the small print of its website or several clicks away from the home page. In view of this, a pop-up or notice panel on the website front page, either as part of or similar to the existing cookies notice, should be sufficient provided that it is clear to users what the disclosures relate to and what they are consenting to.
The notice on the display advertisements should be an icon, symbol, text or similar which is easily discernible to the normally sighted web user and which is not obscured by the background text on either the website or the display advertisement.
Signatories to the pan-EU body, the European Interactive Digital Advertising Alliance (EDAA), can satisfy the second notice requirement by paying the EDAA a fee to use of an EU-wide OBA Icon. This icon will also link to the EDAA’s ‘Your Online Choices’ consumer choice platform and will provide approved accompanying text for each European market. The fees payable to the EDAA are as follows:
- Regular fee: €5,000 per year
- SME fee: €3,000 per year – this is available to companies who can show that their annual revenue from online display advertising during the previous financial year was less than €3 million.
As set out in the overview above, both notices must include a link to a relevant mechanism for opting out of the collection and use of web viewing data for OBA purposes. The OBA rules do not provide a definition of a relevant mechanism. However, in the ASA’s guidance documents it anticipates that most third parties will choose to satisfy this requirement by providing a link to the EDAA consumer choice platform www.youronlinechoices.eu which enables users to exercise their choice and control over a range of third parties, not just limited to the third party that served them the ad.
The ASA will have the authority to enforce the OBA Rules from 4 February 2013. Although it has stated that it will strive to resolve breaches of the OBA Rules quickly and proportionately, the ASA will have the power to carry out a formal investigation leading to an adjudication, which is published on the ASA website. It may also pursue measures to encourage persistent offenders to fall in line with the OBA Rules which could involve bringing the non-compliance to the attention of the third parties’ potential clients and partners.
In addition, for third party signatories of the EU Industry Framework, the ASA will have two additional sanctions at its disposal:
- the ability to remove the trading seal of approval that signifies their compliance with the framework; and
- the removal of the licence to use the EDAA OBA Icon and consumer choice platform.
For more information about the new OAB Rules and the EDAA mechanism:
Reviewed in 2015