Marketing leaders from around the world met recently in Chicago
for the Annual Marketing Law Conference of the Promotion Marketing
Association, entitled Converging Platforms and Diverging
Laws. Attendees heard from a wide variety of speakers,
including representatives of the world's largest brands, the
Federal Trade Commission, technology pioneers and leading law
The agenda was chock full of presentations designed to address
the seemingly never-ending challenges that lawmakers and
practitioners face while trying to keep pace with new technology
and practices. Topics ranged from traditional advertising concerns
and challenges with ever-changing social media and digital
platforms to disclosure requirements in mobile app development.
Perhaps the most commonly discussed theme, however, was that of
data privacy — particularly concerns surrounding
online/mobile tracking and targeting. It is clear that data privacy
issues present unique challenges to an advertising industry that
now relies heavily on highly targeted ads.
In the United States, it's been reported that almost 200
class action lawsuits have been filed against publishers, ad
servers and advertisers. In addition, the Federal Trade Commission
is pushing for the industry to adopt a "Do Not Track"
option for consumers. Meanwhile, the European Union has imposed
strict consent rules for tracking and targeting. Here in Canada,
the Office of the Privacy Commissioner has released a policy
position on online behavioural advertising (OBA). Despite stating
that all information collected for OBA will be considered as
"personal information" for the purposes of Canada's
privacy legislation (regardless of whether that information can be
reasonably used to identify an individual), the guidelines do
purport to allow for the collection of personal information for OBA
so long as certain requirements are met (e.g., that users be given
notice of the option to immediately and persistently opt out of
Speaking on a behavioural advertising panel, Brenda Pritchard
(head of the Gowlings Manufacturing, Sales and Distribution
Industry Group) advised that Canada will be following a
self-regulatory model similar to that of the U.S., so expect to see
an OBA icon on Canadian websites soon. Overall, there are many
legal challenges facing the global advertising industry as changes
in the law and regulatory action intersect with changes in
technology and media. In addition to educating each other through
conferences like this one, it is imperative that the industry work
together to educate consumers and provide them with sufficient
notice and choice.
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