Most internet users are completely unaware that
they are tracked at almost every site they visit and that
information gathered at one site is frequently used by a third
party company to choose ads seen at another.
When properly regulated and controlled this
isn't in itself a cause for concern, but consumers resent that the
activity is hidden from them. Perhaps that is why in a recent
survey
84% of people (27-page PDF) said it was unacceptable to display
ads tailored to what they did on other sites they have visited.
The advertising industry needs to fix the
problem, and quick, because regulators are circling.
The UK's Office of Fair
Trading pledged in October to investigate behavioural
advertising and whether it breaks consumer protection laws. A group
of MPs and Lords called for a
change in UK law to make it illegal to engage in behavioural
advertising without explicit consent.
Europe's former Consumer Affairs Commissioner,
Meglena Kuneva, has condemned today's targeting practices and
threatened action. "If we fail to see an adequate response to
consumers’ concerns on the issue of data collection and profiling,
as a regulator, we will not shy away from our duties nor wait for a
cataclysm to wake us up,"
she warned in March.
What is clear is that putting a vague note that
hints about what actually happens inside a massive privacy policy
that nobody reads is not going to be enough. Advertisers need to go
further, and total transparency could satisfy regulators.
Crucially, evidence is emerging that such honesty does not, in
fact, scare off web users.
The industry seems reluctant to do embrace such
transparency. Online advertising trade body the Interactive
Advertising Bureau (IAB) has published Good
Practice Principles for Online Behavioural Advertising (OBA),
but they stop far short of insisting that behaviourally targeted
ads be clearly labelled.
The Principles tell site operators to "provide
clear and unambiguous notice to users that it collects data for the
purposes of OBA". But this is usually contained in dense text in a
site's privacy policy. Most visitors never even visit that page,
never mind read it all, never mind understand the legal jargon it
typically contains.
Is there another way?
There is, and Arizona-based advertising company
FetchBack is showing that providing clear labels about how data is
used needn't frighten customers away.
In June it started putting an 'Ad info?' link
on all of its ads. That leads to a clear explanation of what data
it uses and how as well as a big, clear 'opt out' button.
The most important piece of information for
site owners and advertisers, though, is this: since it began the
labeling, FetchBack's opt out rate has fallen. Fewer
people now ask for their data not to be used than did when
information about the use of their data was more obscure.
Here is a FetchBack ad for True Religion
Brand Jeans. The 'Ad Info?' button is small enough to be
unobtrusive, but big enough to be noticed.
The FetchBack link leads to a page which says
"Wondering why you saw a display advertisement, provided by
Fetchback?" It explains its use of behavioural advertising, it
explains what advertiser it is working with, and there's a big
button to opt out. Here's an
example landing page for another of its advertisers.
So what do some of the bigger players do?
Yahoo! and Google engage in a kind of watered-down version of
FetchBack's transparency. Each has an 'Ads by Yahoo!' or 'Ads by
Google' notice on their adverts, but I don't think this signals
clearly to web users that this is a link that should be clicked on
to find out about the mechanics of the advert. As a user, I assume
these links will take me to Yahoo.com or Google.com or to a page
that will tell me how I can get their ads displayed on my site.
Another company has shown that clear ad
labeling can not only encourage trust with web users without
scaring them off, it can even be turned into a further marketing
opportunity.
In an advert on the Times Online website for
cycling and running gear seller Wiggle, Criteo used its information button to
remind users of what they might like to buy. Here is an
excerpt from that ad:
Hover your mouse over the "i" in the corner
and you get this:
Click that link and you get a fabulous fusion
of privacy protection and marketing:
I love Criteo's approach. My only criticism is
that the "i" in the corner of the ad is too subtle. I'd advocate
"Ad info" – I'm not sure the question mark that FetchBack adds is
necessary. The best wording to balance disclosure and brevity can
perhaps be determined by a user study. Perhaps such a study has
been carried out already.
A higher-profile innovation is Google's
Ads Preferences
Manager, which can be reached via the landing page for the "Ads
by Google" link. I suspect that relatively few people use it
to set their interests because so few people will click that link.
If people don't know that ads are based on their preferences, they
won't adjust Google's assumptions.
Advertisers and publishers are unlikely to want
to act alone, but the situation is growing urgent. In November,
Commissioner Kuneva created a Stakeholder Forum on Fair Data
Collection at which publishers, advertisers and ad networks
will be asked whether or not consumers are told enough about the
collection of data and use of it to profile them.
"Stakeholders should agree on better consumer
information when profiles are used. In essence, consumers should be
informed that ads are based on their profile," she said.
So what is the answer? It has to be action on
an industry-wide basis. The IAB should advise members to put clear
links on ads based on behavioural analysis. If the IAB doesn't take
action, lawmakers and regulators will, and advertisers would be
better off coming up with a solution that works for them rather
than one imposed by politicians.
Advertisers and site operators will be worried
about a surge in opt-outs. FetchBack shows that it is not
inevitable, but even if it happens it is a price worth paying. The
rise or fall in opt-outs should not be benchmarked against today's
opt-out rate. It should be benchmarked against tomorrow's law. I am
confident that the future of behavioural advertising will demand
greater transparency than exists today. Right now, the ad industry
has some control over that future. If it doesn't exercise it
wisely, that control will be lost.
By Struan
Robertson, editor of OUT-LAW.COM. The views expressed
are Struan's and do not necessarily represent those of Pinsent
Masons. You can follow Struan at Twitter.com/struan99.
